California Gun Enhancements

Over the past decade, California has been on the cutting edge of criminal justice reform. However, it wasn’t always that way. In fact, many of the recent reforms have really just reversed some of the most draconian sentencing laws, most of which were enacted decades ago. The impact of California gun enhancements cannot be overstated. By some estimates, over 40 percent of California inmates are serving sentences at least partially made up of enhancements. And while there are more than 100 California sentencing enhancements on the books, gun enhancements are among a small group of enhancements that make up over 80 percent of all sentence years.

Under California Law, A gun enhancement is a sentencing law that provides additional penalties, in the form of years added to an inmate’s sentence, if a gun was used during the commission of a crime. These enhancements are governed by several sections of the California Penal Code and can significantly increase the length of a prison sentence if someone is convicted of the enhancement and the underlying offense.

There are a few important things to know about gun enhancements, generally, before getting into the applicability of the various enhancements.

Gun Enhancements Often Apply in Cases Involving Serious Felonies: Gun enhancements are often applied in cases involving serious felonies, including violent crimes like robbery, assault with a deadly weapon, and murder. The presence of a gun, whether it was used or merely possessed during the commission of the crime, can trigger the enhancement.

Gun Enhancements Result in Mandatory Additional Sentences: Gun enhancements can lead to mandatory additional sentences, which are added to the base sentence for the underlying felony. For instance, under Section 12022.53, the use of a gun in the commission of certain felonies can result in an additional 10 years, firing a gun can add 20 years, and causing great bodily injury or death with a gun can add 25 years to life.

Discretionary vs. Mandatory: While some enhancements are mandatory, meaning the judge must impose them if the criteria are met, others allow for judicial discretion depending on the specifics of the case and the defendant's criminal history. There has been a trend to reduce the number of mandatory gun enhancements—and all enhancements—putting more authority in the judge’s hands.

Gun Enhancements Are the Focus of Many Recent Reforms: California has seen debates and legislative changes regarding the use and impact of gun enhancements. Some argue that these CA gun enhancements have led to excessively long sentences that disproportionately affect certain communities. As a result, there have been moves to reform these laws to provide judges with more discretion in their application.

California law contains more than 100 enhancements; however, firearms enhancements are among the most frequently used. Below is a list of the most common California gun enhancements.

Section 12022 provides that a “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.” A “true” finding under § 12022 will add one year to a person’s sentence (three years if the firearm was an assault weapon, machinegun, or a .50 BMG rifle), provided being armed with a firearm was not an element of the crime they were convicted of committing. Further, this enhancement applies to anyone involved in committing the crime, even if they were not the one who was armed with a firearm. Section 12022 enhancements will result in a 3-, 4-, or 5-year enhancement if the underlying crime involved certain narcotics offenses.

Section 12022.2 provides that anyone who is armed with a firearm commits or attempts to commit a felony and has ammunition designed to penetrate metal or armor, is subject to an additional term of 3, 4, or 10 years.

Section 12022.3 contains two slightly different enhancements, both of which involve firearms and sex offenses. Specifically, § 12022.3 provides for a 1-, 2-, or 5-year enhancement for anyone who is armed with a firearm during the commission or attempt of a designated sex offense. However, if the firearm was used, the enhancement will result in an enhancement of 3, 4, or ten years. In this context, “use” includes but is not limited to discharging the firearm. Thus, pistol-whipping someone during the commission of a sex offense could possibly result in the application of the 3-,4-, or 10-year enhancement.

Section 12022.4 is one of the newer California firearm enhancements, coming into effect on January 1, 2022. This enhancement adds 1, 2, or 3 years to an inmate’s sentence if they provide or offer to provide a firearm to another person for the purpose of aiding, abetting, or enabling that person or any other person to commit a felony.

Historically, section 12022.5 is one of the most relied-upon firearms enhancements in California. This enhancement applies to anyone who personally uses a firearm during the commission of a felony or attempted felony. A § 12022.5 enhancement will add 3, 4, or 10 years to an inmate’s base sentence unless the weapon was an assault rifle or machinegun, in which case the enhancement will add 5, 6, or 10 years to the sentence. Notably, however, Section 1385 specifically gives judges the authority to strike § 12022.5 enhancements when doing so is in the interests of justice.

Section 12022.53 is another commonly used gun enhancement that, when applicable, will add 10, 20, or 25 years to an inmate’s sentence. This enhancement applies when a person personally uses a firearm during the commission of a serious felony. Section 12022.53 provides a list of all “serious felonies,” which include:

• Murder
• Mayhem
• Carjacking
• Rape
• Robbery
• Kidnapping
• Assault with Intent to Commit a Specified Felony
• Assault with a Firearm on a Peace Officer
• Sodomy
• Oral Copulation
• Lewd Act on a Child
• Sexual Penetration
• Assault by a Prisoner or Life Prisoner
• Any felony punishable by death or life in prison, and
• An attempt to commit any of the above felonies (except assault).

Notably, the firearm does not need to be operational or loaded for this enhancement to apply.

An enhancement under § 12022.53 will add 10 years if the firearm was “used,” 20 years if the firearm was discharged, and 25 years if the firearm was discharged and someone suffered great bodily injury or death.

There is also interplay between § 12022.53 and the California gang enhancement under § 186.22 because § 12022.53 applies to anyone (whether they carried, used, or discharged a firearm) involved in the crime if the prosecution can establish that the defendants committed the crime for the benefit of, at the direction of, or in association with a criminal street gang.

As is the case with § 12022.5 enhancements, Section 1385 specifically gives judges the authority to strike § 12022.53 enhancements when doing so is in the interests of justice.

Section 12022.55 is a severe sentencing enhancement that applies in cases involving drive-by shootings. Under § 12022.55, any person who inflicts great bodily injury or causes another’s death as a result of shooting a gun from a vehicle during the commission of a felony is subject to a 5-, 6-, or 10-year enhancement. Any enhancement time under § 12022.55 is in addition to and consecutive to enhancements under § 12022.5.

California lawmakers have been busy revising much of the state’s Penal Code, especially in terms of sentencing enhancements. However, one of the most significant developments came in 2018 by way of Senate Bill 620 (“SB 620”). SB 620 gave judges discretion to strike certain firearm enhancements under § 12022.5 and § 12022.53 when doing so is in the interests of justice.

Several years later, lawmakers passed Senate Bill 81 (“SB 81”), which piggybacks on SB 620. Under SB 81, judges have the obligation to dismiss an enhancement when it is in the interests of justice. SB 81 also provides a list of factors a judge should consider when determining if dismissal of an enhancement is within the interests of justice, including:

• The use of the enhancement would result in a disparate racial impact.
• The prosecution is alleging multiple enhancements.
• The enhancement could result in a sentence of over 20 years.
• The defendant has a history of mental health issues.
• The offense is related to a defendant’s prior victimization or childhood trauma.
• The offense was nonviolent.
• The defendant was a juvenile when they committed the instant offense or prior offenses.
• A firearm was used, but it was inoperable or unloaded.

California’s gun enhancement reforms, such as SB 620 and SB 81, are retroactive insofar as they apply to those inmates who have previously been convicted, but their convictions are not final. This generally means that an inmate has not completed the direct appeal process. However, for those inmates who have exhausted their appeal, SB 620 and SB 81 are not retroactive and will not apply.

That said, there are other avenues inmates can take to use these reforms to their benefit. For example, California law previously permitted inmates to seek resentencing hearings when they obtain a recommendation from the District Attorney of the county where they were convicted or from the CDCR. One consideration District Attorneys and the CDCR take into account is whether the inmate’s continued incarceration is in the interests of justice. One factor in making this assessment is whether the inmate’s sentence comports with current sentencing laws. Thus, to the extent that California sentencing laws have changed since an inmate’s incarceration, there is an argument to be made that their incarceration is no longer in the interests of justice because it is unlikely they would have received such a harsh sentence had they been sentenced today.

Further, AB 600, which was signed into law in October 2023, removes the requirement that an inmate first obtain a recommendation from the District Attorney or the CDCR before petitioning the court for a resentencing hearing. Thus, under AB 600, the judge has the authority to grant an inmate’s request for resentencing on its own.

If you or someone you are close to is serving a lengthy term of imprisonment that includes a gun enhancement, recent changes to California’s sentencing laws may have opened up doors that were previously closed. To learn more, and to schedule a free consultation with a California criminal appeals attorney to discuss your case, give Power Trial Lawyers a call today at 213-800-7664. You can also connect with us through our secure online contact form.