California Penal Code Section 12022.53: “10-20-Life” Sentence Enhancements for Firearm Use
Not only does the California Penal Code contain laws that define what is and is not a crime, it also contains numerous laws that provide prosecutors and judges with ways to increase punishments for a given offense. These laws are called sentence enhancements, and they can often add years or even decades to a penalty for a crime.
One such law is that of firearm use during the commission of a crime. Enacted in 1997, Penal Code section 12022.53 is also known as the “10-20-Life” law. It is also referred to as the “Use a Gun and You’re Done” law. Under this law, if you personally use a firearm to commit or attempt to commit certain violent or sexually motivated felonies, you can face an additional sentence of 10 or 20 years, or be imprisoned for life.
Felonies Subject to Sentence Enhancement Under PC 12022.53
The 10-20-Life enhancement applies to several specific crimes. These crimes listed under PC 12022.53 include:
- Murder – California Penal Code 187 PC
- Mayhem – California Penal Code 203 or 205 PC
- Kidnapping – California Penal Code 207, 209 or 209.5 PC
- Robbery – California Penal Code 211 PC 1) Section 187
- Carjacking – California Penal Code 215
- Assault with Intent to Commit a Specified Felony – California Penal Code 220
- Assault with a Firearm on a Peace Officer or Firefighter – California Penal Code 245
- Rape – California Penal Code 261 or 262
- Rape or Sexual Penetration in Concert – California Penal Code 264.1
- Sodomy – California Penal Code 286
- Lewd Acts on a Child – California Penal Code 264.1
- Oral Copulation – California Penal Code 288a
- Sexual Penetration – California Penal Code 289
- Assault by a Life Prisoner – California Penal Code 4500
- Assault by a Prisoner – California Penal Code 4501
- Holding a Hostage by a Prisoner – California Penal Code 4503
- Any Felony Punishable by Death or Imprisonment
- Any attempt to commit a crime listed above, other than assault
The Prosecution’s Case for Enhancement Under PC 12022.53
In addition to proving the elements of the underlying crime in an attempt to convict you, the prosecution must also prove multiple elements related to your personal use of a firearm before your sentence can be increased. The prosecution must show that you:
- Personally displayed the firearm in a menacing manner;
- Personally hit someone with the firearm (such as “pistol-whipping”); OR
- Personally fired the firearm.
The Gang-Related Enhancement Exception
There is also a law that allows a person who did not personally use a firearm in the commission or attempted commission of the crime. A California Court of Appeals decision ruled that a person who either personally uses a firearm, or who aides and abets someone else who uses a firearm in the commission of a crime, can have his or her sentence enhanced under 12022.53 if the crime was committed for the benefit of a criminal street gang.
A crime is considered for the benefit of a gang if it “willfully promotes, furthers, or assists” the gang or its members. You do not have to be a member of the gang for this rule to apply.
How the 10-20-Life Enhancement Works
Under PC 12022.53 or the 10-20-life enhancement law, the enhanced sentence will be added to the sentence for the actual crime that is committed. This means that the court will first impose a sentence for the original crime, and then the enhancement will run after the original crime’s sentence has been served.
The increase in your sentence is determined by the manner in which the gun is used to assist in the commission of the crime. This includes:
- Displaying the gun or striking someone with the gun: 10 years
- Firing the gun: 20 years
- Seriously injuring or killing someone with the gun: 25 years to life
For example, suppose you are convicted on a count of kidnapping. Kidnapping is a crime that can be punished by three, five, or eight years in prison. Assume that the court decides to give you a five-year sentence for the kidnapping conviction. If the jury found that you personally used a firearm to accomplish the kidnapping, the court can increase your total sentence to 15 years, 25 years, or a life sentence, depending on the way you used the gun.
Defenses to Penal Code Section 12022.53
You Did Not Commit the Underlying Crime
Enhancing a sentence requires that the person charged has been convicted for an underlying offense. So, if the prosecution fails to make its case on the original crime, there will be no sentence that can be enhanced under PC 12022.53.
You Did Not Personally Use the Firearm During the Commission of the Crime
Even if the prosecutor is able to convict you of the original crime, he or she still must prove
that you personally used a firearm to commit the crime (or in a gang-related case, you assisted someone). If he or she fails to do so, you can only be sentenced for the underlying crime itself.
Suppose you are convicted of robbing a convenience store, and that you hid a loaded pistol in the waistband of your pants so that it is not visible to the store’s clerk. During the robbery, you shout to the clerk, “Give me all the money or I will shoot you!” Your threat is so effective that you never need to pull the gun out of your waistband. This means that though you committed a robbery, you never actually “used” the gun, and your sentence cannot be enhanced.
Self-Defense or Defense of Others
California law provides that the use of force (including deadly force) is legal when done so to reasonably defend yourself or another against imminent great bodily harm or unlawful touching. However, the force you use must not be greater than the force that is necessary to repel the incoming attack. So, if you use a gun to defend yourself or someone else who is about to be attacked, you may have a defense if the judge or jury deems that your use of the gun was a reasonable response to the imminent attack.
Frequently Asked Questions
1. Is it legal for California to punish someone twice for the same crime?
Under the Fifth Amendment to the U.S. Constitution, the “Double Jeopardy” Clause prohibits the government from subjecting a person to multiple punishments for the same crime. It would seem that a sentence enhancement like PC 12022.53 would be illegal under this prohibition. However, the Supreme Court has ruled that such sentence enhancements are legal because the legislature’s intent is to provide an additional punishment for using a gun to commit a crime that could be committed without one.
2. Is it a defense if I used a gun that was not loaded?
No. It is important to note that the enhancement for any of these uses of a firearm still applies to weapons that are not loaded. In other words, you can pull the trigger on a gun with no bullets in its magazine or in its chamber, and have your sentenced enhanced for having “fired” the weapon.
3. Can I get probation instead of incarceration if I used a gun?
Probation is only possible if the district attorney agrees to drop the enhancement from your case. According to PC 12022.53(g) and (h), the court is not allowed to remove the enhancement or suspend punishment if you are found to have used a gun in the commission of a crime. This means that if a jury finds this to be true, or if you plead guilty to a charge where the prosecution alleges the enhancement, the court is not allowed to disregard the enhancement or sentence you to probation.
Contact the Attorneys at Wallin & Klarich Today
Have you been charged under the 10-20-life law for using a gun to commit a serious felony? If so, you are facing a tough legal battle, and you need to hire an experienced and aggressive criminal defense firm. At Wallin & Klarich, we have spent over 40 years successfully defending people who have faced sentence enhancements for the use of a firearm. We can help you, too. Contact us today for a free, no obligation phone consultation.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in California’s enhanced sentence laws near you, no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.