In 1997, Penal Code section 12022.53 was enacted, drastically increasing the punishment for the use of a firearm during the commission of a crime. Under the old law, the use of a firearm during a felony added several years. After the “10-20-Life” section of 12022.53 came about, prison sentences grew. But does this apply to every felony? When do the 10-year, 20-year and “life” enhancements come into play?
First – these provisions apply only to certain crimes. There are seventeen crimes listed that are eligible for this sentence enhancement. They are: Murder, mayhem, kidnapping, robbery, carjack, certain assaults and several sex offenses (such as rape, forcible sodomy, forcible oral copulation and child molestation). Importantly, an attempt to commit any of the listed crimes also can enact the harsh sentence under 12022.53.
There are three different sentence “enhancements” under this law. If you are convicted of one of the listed felonies and it is proven beyond a reasonable doubt that you “used” a firearm during that crime, an additional 10 years is tacked onto your sentence. What counts as “using” a firearm? Essentially, it any situation where the gun helped in the commission of the crime. Displaying a gun, even if unloaded, during a robbery would qualify for this extra 10 year sentence.
The second level of sentence increase is the 20-year section. It only applies to the same felonies as listed above, but this time, a person who “personally and intentionally” discharges a firearm gets the 20 years added to their crime.
Finally, an additional sentence of 25 years to life in prison is added if a firearm is personally and intentionally discharged and it causes great bodily injury or death.
These allegations and sentences, like every other law, are able to be defended against. In the “use” allegation, can the prosecution prove beyond a reasonable doubt the object somebody claimed to see was really a firearm and not anything else? In the 20-year sentence enhancement, can it be proven that you were the one that fired a gun? Can they prove it was intentional and not an accidental shot?
The sentence for a “regular” robbery is up 5 years in state prison. By adding on an allegation that a gun was “used” during this crime, the sentence jumps to 15 years in prison – tripling the time. The sentences are long and harsh. They deserve to be fought vigorously.