Firearm in Commission of a Crime in San Diego
Imagine that you are charged with a felony and there happened to be a firearm present at the time of the offense. It is not necessary for you to have used the firearm during the commission of the felony or for the firearm to even be loaded, you may face sentencing enhancements for the mere presence of the firearm. The reality of these firearm cases is that law enforcement officers are quick to make assumptions at the onset of their investigation and do not give you the opportunity to explain the circumstances. The policy in San Diego County is that if in the commission a felony a firearm is found at the scene of the crime the prosecutor may automatically charge you with sentencing enhancements. Sentence enhancements allow judges to increase the punishment for the use of firearms in commission of a felony. This means that if you are found guilty of the underlying felony your sentence will be enhanced with an additional and consecutive sentence for the firearm. Do not allow the law enforcement investigators’ incorrect assumptions to drive the outcome of your case. You need a skilled criminal defense attorney who will hold the government accountable and make sure to ask the right questions to ensure that you do not become one more victim of wrongful firearms sentencing enhancements!
Understanding the Fourth Amendment of the United States Constitution
Pursuant to the fourth amendment of the U.S. constitution, “the right of the people to be secure in their person, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by an oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.” Thereby all citizens are guaranteed the right to be free from unreasonable government searches and seizures of their persons, homes, businesses, and property. Yet the reality is that from the moment that you become a defendant in a criminal investigation your fourth amendment federal constitutional right is placed at risk. There is generally no expectation of privacy in property that is held out to the public. This means that law enforcement is not required to have probable cause or to obtain your consent for anything that is in plain view of the officer at the time of your arrest.
Infringement of your fourth amendment right occurs whenever law enforcement officers proceed to search you, seize your property or make an arrest against you without probable cause. Probable cause requires that law enforcement have evidence that would lead a reasonable person to believe that you have in fact committed a crime. Without probable cause law enforcement can only lawfully conduct a search if you waive your fourth amendment right and consent to the search. It is very important that you understand that your consent effectively waives your reasonable expectation of privacy, giving law enforcement the opportunity to find probable cause they need to make the arrest. Do not allow this to occur, the best thing for you to do is to make it known to the law enforcement officers that you do not consent to the search or seizure.
As a Fourth Amendment Defense Lawyer in California, we firmly believe that the government must be held accountable to its citizens in the criminal justice system. We will protect your federal constitutional right to privacy by thoroughly examining the evidence against you in search of any law enforcement misconduct. If we find that an unreasonable government intrusion took place we will file a suppression motion on any evidence found as a result of the unlawful search, seizure or arrest. In San Diego, wrongful firearm enhancements continue to be applied to criminal sentences as a result of illegal searches and seizures by overzealous law enforcement officers acting without probable cause. Do not let this happen to you, ensure your fourth amendment rights by contacting us at the onset of your case!
Understanding Penal Code Section 12022
An enhancement offense is one whose commission alone increases the penalties for the underlying crime. In consideration of the seriousness of the use of firearms in the commission of a felony, California has established firearms sentencing enhancements under Penal Code section 12022. Penal Code section 12022 makes it clear that every person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment unless being armed is an element of the felony offense.
In order to apply the firearms sentencing enhancements, the prosecutor in your case must prove beyond a reasonable doubt:
The elements of the underlying felony and
That you were in the commission or attempted commission of the felony and
That you were armed with a firearm during the commission of the felony.
What is a felony?
A felony is classified as the most serious type of crime. A felony conviction results in a fine and/or imprisonment for more than one year. These are the underlying felony offense categories that are eligible for firearms sentencing enhancements under Penal Code section 12022:
- Drug Trafficking Crimes
- Sex Crimes
- Crimes of Violence
What is a firearm?
A firearm is any device that was designed to discharged a projectile through a barrel by the force of a combustion. For purposes of Penal Code section 12022, a firearm need only appear to be capable of shooting but does not need to actually be loaded or in working condition for the sentencing enhancement to apply. These are some of the most common types of firearms associated with firearms sentencing enhancements under Penal Code section 12022:
- Full-auto firearms
- Machine gun
What does it mean to be armed?
Generally, to be armed means to have possession of a firearm. However, pursuant to Penal Code section 12022 to have a firearm available at the scene of the crime also constitutes being armed.
Sentencing Enhancements for Firearms in the Commission of a Felony
If you are convicted of the underlying felony and found guilty under Penal Code section 12022, you will be sentenced to an additional and consecutive term in prison for the possession or use of a firearm during the commission of the underlying felony. There are three sentencing enhancement terms for the judge to choose from.
Low Sentencing Term:
One, two, or three years in prison.
Ex: Having knowledge that a co-defendant was armed during the commission of a felony.
Middle Sentencing Term:
Three, four, or five years in prison.
Ex: Personally being armed during the commission of drug offense involving possession for sale or transportation of drugs.
High Sentencing Term:
Five, six, or ten years in prison.
Ex: Using a gun in a menacing manner during the commission of a sex crime.
What are the determining factors for the sentencing enhancement?
The judge has discretion to decide the sentencing enhancement prison term. To determine the severity of the enhancement under Penal Code section 12022, the judge will consider these factors:
Your criminal history,
The underlying felony offense,
The role played in the offense,
The type of firearm involved in the offense,
Whether the firearm was used or possessed and
Whether responsibility was assumed.
What penalties are associated with the firearms sentencing enhancements?
In addition to the sentencing enhancement for the possession or use of a firearm during the commission of a felony under Penal Code section 12022, these are some of the penalties:
- Loss of right to own weapons
What are possible defenses for firearms sentencing enhancements?
These are some of the criminal defenses that we can assert on your behalf to help you overcome the firearms sentencing enhancements under Penal Code section 12022:
- You did not commit the underlying felony.
- You were falsely accused of using a firearm.
- You did not knowingly possess a firearm during the commission of the felony.
- You did not personally use the firearm during the commission of the felony.
- The firearm did not give reasonable appearance of shooting capability.
- The firearm that was found was the result of an illegal search.
“10-20-Life Use a Gun and You’re Done” Law
In consideration of the gravity of firearms being used in the commission of serious felony, California has established three severe firearms sentencing enhancement categories. Pursuant to Penal Code section 12022.53, any person who in the commission of a felony specified in subdivision (a), “personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years or personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in state prison for 20 years”. Accordingly, “any person who in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life”. This means that if you are facing charges for a firearm in commission of a serious felony, your sentence enhancement will depend on the type of underlying serious felony and the specific use of the firearm.
What are considered serious felonies?
These are the underlying serious felony offenses that result in severe firearms sentencing enhancements under Penal Code section 12022.53:
- Assault with intent to commit a specified felony
- Assault with a firearm on a peace officer
- Rape or sexual penetration in concert
- Lewd act on a child
- Oral copulation
- Assault by a prisoner
- Holding a hostage by a prisoner
What are the firearms sentencing enhancements for an underlying serious felony?
Under Penal Code section 12022.53, there are three firearms sentencing enhancement categories when the underlying felony falls under the category of serious felony. It is important to note that these enhancements are in addition and consecutive to the sentence for the underlying serious felony conviction.
Using a Firearm:
Sentence enhancement of 10 years in prison.
Firing a Firearm:
Sentence enhancement of 20 years in prison.
Killing or Seriously Injuring Another with a Firearm:
Sentence enhancement of 25 years to life in prison.
Immigration Consequences of a Firearms Conviction
Pursuant to Title 8 U.S. Code section 1227(a)(2)(C) “any alien who at any time after admission is convicted under any law of purchasing, selling, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any destructive device in violation of any law is deportable”. This means that if you are not a U.S. citizen, any conviction pertaining to firearms will be considered grounds for deportation. Firearms convictions have serious immigration consequences, that is why it is crucial for you to hire an attorney who is both skilled in criminal defense and knowledgeable on the nuances of immigration implications. Our San Diego criminal defense firm has vast experience handling firearms cases with immigration ramifications, give us a call today so that we may begin preparing the best defense for your specific circumstances.
Firearms in Commission of a Felony Criminal Lawyer in San Diego
Firearms sentencing enhancements under penal code section 12022 for firearm in commission of a crime can range anywhere from a year to a life in prison. This prison term is in addition to the sentence that you will be facing if you are convicted of the underlying felony. You need a skilled criminal defense attorney who can attack the underlying felony and has experience with firearm enhancement laws. Do not allow yourself to become a victim of these harsh sentencing enhancements! At Monder Law Group we understand what is at stake, we will put our vast experience to work for you and commit ourselves to ensuring that your rights are protected at every stage of the criminal justice system.