Use or Possession of a Firearm in Commission of a Sex Crime - Penal Code 12022.3 PC
The penalties for committing sex crimes in California can be steep and long-lasting, from extended prison time to inclusion on the state's sex offender registry.
Suppose someone uses or possesses a firearm or other deadly weapon in the commission of certain sex offenses. In that case, the penalties may go up considerably.
Penal Code 12022.3 PC outlines these enhancement provisions. Suppose you're convicted of an eligible sex crime involving a firearm or deadly weapon, depending on the circumstances of your case. In that case, you could face up to ten years in prison just for the firearm enhancement.
In other words, this California statute creates a firearm sentencing enhancement for defendants who use or possess a gun while committing a specific sex offense, such as Penal Code 261 PC rape, Penal Code 286 PC sodomy, Penal Code 287 PC oral copulation with a minor, and others.
This enhancement exposes a defendant to a number of years in California state prison, in addition to and consecutive to the penalties they receive for the underlying sex offense.
PC 10222.3 says, “For each violation of Section 220 involving a specified sexual offense, or for each violation or attempted violation of Section 261, 264.1, 286, 287, 288, or 289, or former Section 262 or 288a, and in addition to the sentence provided, a person shall receive the following:
(a) A three, four, or 10-year enhancement if the person uses a firearm or a deadly weapon in the commission of the violation.
(b) A one, two, or five-year enhancement if the person is armed with a firearm or a deadly weapon.”
The Scope of Penal Code 12022.3
Notably, the “commission” of a sexual-related crime does not end when the sex crime is completed, but rather it will continue as long as the perpetrator has control of the victim.
That means that the defendant could still be found guilty of this PC 12022.3 enhancement even if they didn't display their firearm to the victim after completing the sex act.
In accordance with the stipulations of PC 12022.3, two primary situations qualify for sentence enhancement:
- Use of a Firearm: This covers instances where an individual uses a firearm in the commission of specified sexual offenses.
- Armed with a Firearm: This condition applies when an individual is armed with a firearm during the commission of specified sexual offenses.
To ensure a clear understanding, we must distinguish between being "armed with" and "using" a firearm. Being "armed with" a gun doesn't necessarily mean the firearm was used in the crime. It simply implies that the individual possessed a firearm while committing the crime.
Conversely, the "use" of a firearm indicates the weapon was actively involved in committing the crime. This could mean firing, brandishing, or using a weapon to strike a victim.
What Are the Eligible Sex Crimes?
Penal Code 12022.3 PC applies to specific sex offenses, including but not limited to the following:
- Penal Code 261 PC – Rape;
- Penal Code 243.4 PC – Sexual Battery;
- Penal Code 286 PC – Sodomy;
- Penal Code 289 PC – Penetration with a foreign object;
- Penal Code 288 PC – Lewd acts with a minor;
- Penal Code 264.1 PC – Gang rape in concert;
- Penal Code 287 PC – Oral copulation with a minor.
Other things to know about this law:
- PC 12022.3 applies to using any deadly weapon, not just a firearm, in committing the crime. A deadly weapon is any weapon or object capable of producing death or great bodily harm (e.g., a knife, explosive, etc.).
- Sentencing enhancements of PC 12022.3 are additional and consecutive to the original sentence. In other words, you can't simultaneously serve the original and enhanced sentences.
- Sentencing enhancements apply per each violation. So if, for example, you're convicted of rape and sodomy in the commission of the same crime using a firearm, the sentencing enhancement applies twice—once for each of the counts.
What are the Related Crimes?
Several California statutes are related to Penal Code 12022.3 PC use or possession of a firearm in the commission of a sex crime, including the following:
- Penal Code 12022 PC – armed with a firearm in the commission of a felony;
- Penal Code 12022.2 PC – possess armor-piercing ammunition,
- Penal Code 12022.4 PC - providing someone with a firearm,
- Penal Code 12022.5 PC – personally using a firearm,
- Penal Code 12025 PC – carrying a concealed firearm,
- Penal Code 12020 PC – manufacture or sale of certain weapons,
- Penal Code 417 PC – brandishing a weapon or firearm,
- Penal Code 245(a)(2) PC – assault with a firearm,
- Penal Code 12022.53 PC – 10-20-life law,
- Penal Code 186.22 PC – criminal street gang enhancement.
What Are the Enhanced Penalties?
The potential penalties related to Penal Code 12022.3 depend on whether the individual was simply "armed with" or "used" a firearm during the commission of the offense as described above. The possible enhancements are as follows:
- Armed with a Firearm: The penalty is an additional and consecutive term of imprisonment in the state prison for one, two, or five years.
- Use of a Firearm: The penalty is an additional and consecutive term of imprisonment in the state prison for three, four, or ten years.
What are the Defenses for PC 12022.3?
There are several common defenses that an experienced California criminal defense attorney may use to defend against sentencing enhancements under Penal Code 12022.3 PC.
Note that these defenses won't necessarily exonerate you from the alleged sex crime but may keep you from serving additional time in prison if the attorney can show that the enhancement should not apply. The common defenses are discussed below.
Perhaps we can argue that you didn't possess a weapon. If your attorney can show that you did not have a firearm or deadly weapon during the commission of the alleged sex crime, the offense would not be eligible for a sentencing enhancement. Likewise, if you didn't possess a gun, you couldn't have actively used it either.
Perhaps we can argue that you didn't commit a qualifying sex crime. For example, maybe you committed a crime with a weapon against someone, but you didn't commit a sex crime. While you might still face penalties for other crimes or enhancements, you would not qualify for the enhancement under PC 12022.3.
Perhaps we can argue that you had no knowledge of the weapon. Your attorney might acknowledge that the weapon was present, but you were unaware of its presence and therefore were not actively possessing or using it.
Perhaps we can argue that you were falsely accused. It's not uncommon for an alleged victim to issue a false accusation, either of the sex crime itself or of possessing a weapon.
For example, the alleged victim may accuse you of rape in retaliation for something else, or the victim may have assumed you had a weapon when you did not. If your attorney can establish either possibility, you would not be eligible for a sentencing enhancement. Perhaps we can negotiate with the prosecutor prefiling to avoid criminal charges in the first place (DA reject).
You can contact us for a case review by phone or through the contact form. Eisner Gorin LLP has offices in Los Angeles, California.
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