Penal Code § 12022.5 PC – Personal Use of a Firearm During the Commission of a Felony

Penal Code § 12022.5 PC is a firearm sentencing enhancement that can add up to 10 additional years of prison time if you personally use a firearm during the commission (or attempted commission) of a felony. Using a firearm is not limited to firing the gun. This section also applies if you display the firearm in a menacing manner, or use it to strike or pistol-whip a victim.

There are two variations of this enhancement:

• Under Penal Code 12022.5(a), if you personally use a firearm when committing a felony, or in the attempt to commit a felony, you will be punished by an additional and consecutive prison term of three, four or ten years.
• Under Penal Code 12022.5(b), if you personally use an assault weapon or machine gun in the commission of a felony, or attempted felony, you will be punished by an additional and consecutive prison term of five, six, or ten years.

Examples of when enhanced sentences will be applied under this code section include:

• While committing felony burglary, per PC 459, of her neighbor, Kate fires several gunshots into the neighbor’s wall as a scare tactic.
• Jerome shoots a security guard in the leg while stealing an expensive watch from a dealer and committing grand theft, per PC 487.
• Jesus pulls off the crime of carjacking, per PC 215, by shooting a motorist in the arm and then taking his car.

Defenses

Luckily, there are several legal defenses that you can raise to challenge enhanced penalties under this statute. These include showing that you:

• did not commit a felony,
• did not personally use a gun, and/or
• were falsely accused.

Our California criminal defense attorneys will address the following in this article:

• 1. What is the penalty for using a firearm in the commission of a felony?
• 2. What are the sentencing enhancements?
• 3. Are there legal defenses to challenge PC 12022.5 charges?
  • 3.1 You did not commit a felony
  • 3.2 You did not personally use a gun
  • 3.3 You were falsely accused
• 4. Related offenses
  • 4.1 Being armed with a firearm during the commission of a felony – PC 12022
  • 4.2 Possessing ammunition designed to penetrate metal or armor – PC 12022.2
  • 4.3 Personally using a firearm during the commission of a serious felony – PC 12022.53
• Additional reading

1. What is the penalty for using a firearm in the commission of a felony?

Penal Code 12022.5 PC is the California statute that creates a firearm sentencing enhancement if you personally use a firearm during the commission, or attempted commission, of a felony.¹

The “personal use” of a firearm means that you:

• displayed the gun in a menacing manner,
• fired the gun, or
• hit another person with the gun.²

Note that when you display an object that looks like a gun while committing a felony, the object’s appearance and your conduct and words may constitute sufficient evidence to support a finding that it was a firearm for purposes of PC 12022.5.

Also note that it is not necessary that the gun be in working order or even be loaded. All that matters is that the gun was designed to fire ammunition and appears capable of doing so.

Finally, note that the key element of this enhancement is that you committed – or attempted to commit – a felony. If the state cannot prove that you were engaging in criminal activity, then the 12022.5 PC enhancement does not apply – even if you had a firearm.³

2. What are the sentencing enhancements?

If you use a firearm in the commission of a felony, or attempted felony, then in addition and consecutive to your sentence for the underlying felony offense, you face

• three,
• four, or
• ten years in state prison.⁴

If you use an assault weapon or machine gun in the commission of a felony or attempted felony, then in addition and consecutive to your sentence for the underlying felony offense, you face

• five,
• six, or
• ten years in state prison.⁵

3. Are there legal defenses to challenge PC 12022.5 charges?

Here at Shouse Law Group, we have represented literally thousands of people charged with gun crimes including personal use of a firearm during a felony. In our experience, the following three defenses have proven very persuasive with prosecutors, judges, and juries.

3.1. You did not commit a felony

PC 12022.5 applies only if you committed a felony.

Therefore, we can get the charge reduced or dismissed if we can show the D.A. that you instead committed a misdemeanor or infraction.

Evidence we rely on in these cases includes surveillance video and eyewitness accounts.

3.2. You did not personally use a gun

Penal Code 12022.5  applies only if you personally used a firearm while committing a felony.

Therefore, we can get the charge reduced or dismissed if we can show the D.A. that while a gun may have been involved in a crime, you did not personally use it. Perhaps, for example, an accomplice was the party that used a firearm.

As with the previous defense, video surveillance footage and eyewitness accounts would be valuable evidence here.

3.3. You were falsely accused

In the cases we handle, victims often see the perpetrator for only a short encounter while under extreme stress. Plus they have a tendency to fixate on the weapon rather than the face of the gunman.

Consequently, eyewitnesses often identify the wrong person in photo lineups, in live lineups, and in court.

When this happens, we seek out any surveillance video that may have captured the incident. In addition, we can hire expert witnesses who can testify as to how victims’ accounts can be unreliable in heated situations.

4. Related Offenses

There are three crimes related to the personal use of a firearm during the commission of a felony. These are:

1. being armed with a firearm during the commission of a felony – PC 12022,
2. possessing ammunition designed to penetrate metal or armor – PC 12022.2, and
3. personally using a firearm during the commission of a serious felony – PC 12022.53

4.1. Being armed with a firearm during the commission of a felony – PC 12022

Penal Code 12022 PC is the California statute that says you will face enhanced prison time for felony crimes, if during the commission of the crime, either:

1. you were armed with a firearm, or
2. you used a dangerous or deadly weapon.⁶

According to PC 12022:

• if you are armed with a firearm in the commission of a felony, or in an attempted felony, you will be punished by an additional and consecutive prison term of one year.
• if you are armed with an assault weapon, a machine gun, or a .50 BMG rifle in the commission of a felony, you will be punished by an additional and consecutive prison term of three years.
• if you personally use a deadly or dangerous weapon during the commission of a felony, you will be punished by an additional and consecutive prison term of one year.
• if you use a deadly or dangerous weapon in the commission of a felony carjacking, you will be punished by an additional and consecutive prison term of one, two, or three years.
• if you are armed with a firearm during the commission of certain felony drug offenses, you will be punished by an additional and consecutive prison term of three, four, or five years.⁷

4.2. Possessing ammunition designed to penetrate metal or armor – PC 12022.2

California Penal Code 12022.2 creates a sentencing enhancement of between one to ten years if you:

• commit a felony while armed with a firearm and in immediate possession of ammunition designed primarily to penetrate metal or armor, or
• wear a body vest during the commission of a violent felony.⁸

4.3. Personally using a firearm during the commission of a serious felony – PC 12022.53

Penal Code 12022.53 is better known as California’s “10-20-life ‘use a gun and you’re done'” law.

PC 12022.53 provides a sentencing enhancement for when you personally use a firearm during the commission of certain serious felonies. Some of these felonies include (but not limited to):

• Penal Code 187 PC, murder,
• Penal Code 203 PC, mayhem,
• Penal Code 207 PC, kidnapping.⁹

Penal Code 12022.53 PC adds to a felony sentence the longest of the following which applies:

• 10 years in prison for using a gun,
• 20 years for firing a gun, or
• 25 years to life for killing or seriously injuring another person with a gun.¹⁰

The enhancement is in addition and consecutive to the sentence for the underlying felony conviction.

Additional reading

For more in-depth information, refer to these scholarly articles:

• Firearm Ownership, Defensive Gun Usage, and Support for Gun Control: Does Knowledge Matter? – American Journal of Criminal Justice.
• Firearm Violence Following the Implementation of California’s Gun Violence Restraining Order Law – JAMA Network Open.
• The Scope of the Problem: Gun Violence in the USA – Current Trauma Reports.
• When Guns Threaten the Public Sphere: A New Account of Public Safety Regulation under Heller – Northwestern University Law Review.
• The Trajectory of Federal Gun Crimes – University of Pennsylvania Law Review.

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