I. PC 12022.5: Personal Use of a Firearm During the Commission of a Felony
PC 12022.5: “(a) Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless the use of a firearm is an element of that offense.”
II. What does this mean?
This is not a criminal section you can be charged with, instead, it is an Enhancement. What that means, is that you must be first charged with a felony offense, and then thereafter you are also alleged to have committed this secondary violation by committing that felony with the personal use of a firearm. This enhancement also applies to attempted crimes, meaning you do not have to be successful in committing the underlying felony to have this enhancement added to your case.
A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting.
Personal use of a firearm means that you displayed a firearm in a menacing type of manner, or that you fired the gun used during the felony, or that you hit another person with the gun. Even if you do not have an actual firearm during the felony you are committing, if the firearm looks or appears to be a firearm, it could possibly still be valid for this enhancement to be charged against you.
As state above, a violation of PC 12022.5(a) is an enhancement, not a stand-alone crime. Therefore, you would never be charged with enhancement by itself, it has to be added to a felony offense you are already charged with. The enhancement under PC 12022.5(a), can add an additional 3, 4, or 10 years added to your underlying offense, to be run consecutively. If you personally use an assault weapon under PC 12022.5(b), you face an additional 5, 6, or 10 years added to your underlying offense, to be run consecutively. You would have to serve at least 85% of that time in custody.
PC 12022.5 is a strike offense under the Three Strikes Law but is not a charge requiring Sex Registration under PC 290. You would likely face a loss, suspension, or revocation of your professional license. You could also face immigration consequences if you are a non-US Citizen living in the United States, since this may be considered an aggravated felony under Federal Law.
IV. Common Defenses
The defenses to enhancements are quite a bit different than regular criminal charges. Here, a common defense can be that you were not, for example, in the commission of a felony offense. It is required that the charge must be a felony to have this enhancement, if, for example, you use a used firearm upon committing a misdemeanor offense, then this enhancement would not apply to your case.
This enhancement also requires the personal use of a firearm. That means if a felony is committed, and a firearm was used, but you did not personally use it, then you could have been found guilty of this enhancement. An example could mean a robbery, and unbeknownst to you, an accomplice has and uses a firearm. If it was the accomplice, and not you, then they would face this enhancement and you would not since there is no personal use of a firearm by you.
A criminal conviction can have a devastating impact on your life and your future. A conviction here adds up to 10 years to your sentence making the likelihood of coming home one day further and further away and less likely. Our PC 12022.5 Ontario attorney has successfully defended thousands of people charged with criminal offenses in the Inland Empire. You, or your loved one, cannot take a chance on such a serious enhancement. The initial consultation is free and we are available to answer your questions 24/7. Call the Inland Empire Criminal Defense today at 909-939-7126! Located in Ontario, CA.