California Penal Code § 12022.5: Using a Firearm During the Commission of a Felony

When someone uses a firearm during the commission of a felony offense, they may face additional consequences if the prosecutor alleges an “enhancement” pursuant to California Penal Code § 12022.5, unless the use of a firearm is an element towards the underlying offense charged. If the enhancement is found to be true, then punishment ranges from 3, 4, or 10 additional consecutive years in state prison. For instance, if you enter someone’s home to steal a diamond necklace, and you are using a handgun during the commission of the burglary, not only may you be sentenced up to six years in state prison for the burglary charge alone, but an additional 10 years from the use of a weapon during the commission of the burglary, totaling 16 years in state prison. If an enhancement is alleged against someone using an assault weapon during the commission of a felony, then consequences range from 5, 6, or 10 years in state prison.

There are certain limitations to this enhancement however. First, the underlying crime must be a felony offense. If you are charged with a misdemeanor then the prosecutor cannot allege this enhancement against you. Second, the term “use” was recently defined to mean the weapon must be used in a threatening or menacing manner. Moreover, it is insufficient if a suspect is merely carrying the weapon. For instance, carrying a firearm in your backpack during the commission of a felony offense will be insufficient to find the enhancement true, whereas, if you were pointing the firearm at someone during the commission of a felony then this would satisfy the enhancement.

For more information, contact Los Angeles Criminal Defense Attorney John Rogers at the Law Offices of John D. Rogers. Call (949) 625-4487 for a free confidential consultation concerning your rights and defenses.