Penal Code § 12022.53 PC – California’s “10-20-Life” Law

California’s “10-20-life” law, outlined in Penal Code § 12022.53, provides harsh sentencing enhancements for using a gun during certain felonies. You can face an additional 10, 20, or 25 years to life in prison. The purpose of the law is to deter gun violence by imposing harsh penalties for crimes involving firearms.

Penal Code 12022.53 PC adds to a felony sentence:

• 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.

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

Penal Code 12022.53 applies to

• 19 specific California serious felonies, as well as
• other felonies “punishable by death or imprisonment in the state prison for life.”¹

Crimes subject to the “10-20-life” enhancement include (but are not limited to):

• Murder,
• Rape and other serious sex crimes,
• Kidnapping, and
• Assaults / hostage taking by prisoners.

A brief example of how California’s “10-20-life” law works

Let’s say you are convicted of second-degree robbery under California Penal Code 211 PC. That crime carries a maximum sentence of five years in California state prison. ²

However, if you personally used a gun during the robbery, that sentence increases to 15 years. If you fire your gun, it increases to 25 years. Then if during that robbery, you fired your gun and someone was injured or killed as a result, you now face 30 years to life in prison.

Here is a chart showing your sentence depending on whether — and how — you used a gun during the robbery.

Use of a gun	Base sentence	Enhancement	Total Sentence
No gun	5 years	none	5 years
You “used” a gun	5 years	10 years	15 years
You discharged a gun	5 years	20 years	25 years
You injured/killed someone	5 years	25 years-life	30 years-life

As you can see, using a gun during the commission of a felony drastically increases your sentence.

In addition, probation may not be granted to anyone found guilty under Penal Code 12022.53.³ If you are convicted of using a gun during the commission of a serious felony, you will go to prison.

The law now gives judges discretion to dismiss a 10-20-life enhancement

Historically, the 10-20-life sentencing enhancement was mandatory in California.

But in 2017 the California Senate passed Senate Bill 620. Effective as of January 1, 2018, a judge may strike or dismiss a PC 12022.53 firearm enhancement if doing so would be “in the interest of justice.” SB 620 made 10-20-life a matter of judicial discretion rather than a mandatory minimum.

Like other California gun laws, Penal Code 12022.53 PC is fraught with legal jargon and technicalities. This can make it difficult to understand when this sentencing enhancement is and is not applicable.

To help you better understand this law, our California criminal defense attorneys⁴ discuss the following below:

• 1. What is California’s 10-20-life law?
• 2. What are the penalties under Penal Code 12022.53 PC?
  • 2.1. 10 years for “using” a firearm
  • 2.2. 20 years for “discharging” a firearm
  • 2.3. 25-years-to-life for causing great bodily injury or death
• 3. Does “10-20-life” apply to gang members who do not personally use the gun?
• 4. Can I fight the penalty enhancement?
  • 4.1. You did not commit an underlying felony that was subject to the “10-20-life” enhancement.
  • 4.2. You did not personally use a gun during the commission of a crime
  • 4.3. Self-defense / defense of others
• 5. Does “10-20-life” violate the 5th Amendment’s double jeopardy clause?
• 6. SB 620 – judges’ discretion not to impose the 10-20-life enhancement

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is California’s 10-20-life law?

Penal Code 12022.53 PC was enacted in 1997. It aimed to impose mandatory minimum prison terms for the use of firearms in the commission of violent felonies. Today, it remains one of the harshest sentencing schemes in the nation.

The “use a gun and you’re done” sentencing enhancement does not apply to every situation involving criminal gun use. Its use is limited to

• 16 specific felony offenses and
• other felony offenses that are “punishable by death or imprisonment in the state prison for life”.⁵

These crimes are categorically labeled as serious felonies. Liability under this law also extends to “attempts” to commit most of these serious felonies.

The felonies to which PC 12022.53 applies are:

1. Murder – Penal Code 187.
2. Mayhem — Penal Code 203 or Penal Code 205.
3. Kidnapping — Penal Code 207, 209, or 209.5.
4. Robbery — Penal Code 211.
5. Carjacking — Penal Code 215.
6. Assault with intent to commit a specified felony crime — Penal Code 220.
7. Assault with a firearm on a peace officer or firefighter) – Penal Code 245 (d).
8. Rape — Penal Code 261 or 262.
9. Gang rape or sexual penetration — Penal Code 264.1.
10. Sodomy — Penal Code 286.
11. Lewd act on a child — Penal Code 288 or 288.5.
12. Forced oral copulation — Penal Code 287.
13. Sexual penetration — Penal Code 289.
14. Assault by a life prisoner — Penal Code 4500.
15. Assault by a prisoner — Penal Code 4501.
16. Holding a hostage by a prisoner — Penal Code 4503.
17. Any felony punishable by death or imprisonment in the state prison for life.
18. Any attempt to commit a crime listed above (other than assault).⁷

While this sentencing scheme does not apply to assault with a firearm (PC 245(a)(2)), it does apply to assault with a firearm on a peace officer or firefighter (PC 245(d)).⁸

2. What are the penalties under Penal Code 12022.53 PC?

Penal Code 12022.53 PC adds to your underlying felony sentence:

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

If more than one of the above applies, the court will impose only the subdivision with the most severe penalty.⁹

Let’s take a look at what it means to personally use, discharge, or injure someone with a gun during the commission of a felony.

2.1. 10 years for “using” a firearm

Penal Code 12022.53 PC imposes a ten-year sentencing enhancement to anyone who — during the commission of one of the enumerated serious felonies — personally “uses” a firearm.

The firearm does not need to be loaded or operable for you to be convicted of this sentencing enhancement.¹⁰

Nor does using a gun mean that you fired it. You personally “use” a firearm, when you intentionally:

• display the gun in a menacing manner,
• fire the gun, or
• use the gun to strike or hit another person (“pistol whip”).¹¹

This definition is essentially the same as “brandishing a firearm” under California Penal Code 417 PC. Basically, “using” a gun just means you are brandishing your weapon during the commission of one of the enumerated felonies.

The ten-year enhancement may be imposed even if you never actually point the gun at your alleged victim.¹² As long as the gun helps to facilitate the felony – even if only as a “threat” – you have “used” it.¹³

Example: While you are attempting to kidnap someone, you begin waving your gun around and threaten to shoot the victim if she does not comply with your demand to get in your car. Under these circumstances, you are displaying your gun in a menacing manner and are therefore personally “using” your firearm.

Though if you keep your gun concealed and never mention it, you are not “using” your gun and, therefore, should not be sentenced to the additional penalty.

That said, prosecutors would still likely charge you with a firearm sentencing enhancement under Penal Code 12022 PC, being armed with a firearm during the commission of a felony. Fortunately, this carries a much less severe penalty.

They would also likely charge you with violating Penal Code 25400 PC, California’s “carrying a concealed weapon” law.¹⁴

2.2. 20 years for “discharging” a firearm

If during the commission of a crime, you discharge a gun, you face an additional and consecutive 20-year sentencing enhancement.

As Los Angeles County criminal defense attorney Neil Shouse¹⁵ explains:

“You discharge a gun when you aim it at someone and pull the trigger…even when the gun misfires and does not actually discharge a bullet.”¹⁶

Example: While you are trying to get an alleged kidnapping victim into the car, your gun accidentally goes off. Since you did not intentionally discharge it, you should not receive the 20-year enhancement. You will, however, still be charged with the 10-year enhancement for personally using the gun.

2.3. 25-years-to-life for causing great bodily injury or death

Penal Code 12022.53(d) PC carries the possibility of an additional and consecutive 25-years-to-life sentence.

This subsection applies to all of the felonies listed above, and to:

• Penal Code 246 PC – shooting at an inhabited dwelling or occupied car, and
• Penal Code 12034 PC – discharging a firearm from a motor vehicle (drive-by shooting).

The 25-year to life enhancement applies if, during the commission of a felony:

1. you personally and intentionally discharge a firearm, AND
2. the discharge of the firearm proximately causes great bodily injury or death to any person other than an accomplice.¹⁷

“Great bodily injury” means a significant or substantial physical injury.¹⁸ A physical injury need not be permanent in order to be considered significant or substantial.¹⁹

A “proximate cause of injury or death” is:

1. an act or omission,
2. that sets in motion,
3. a chain of events,
4. that produces as a direct, natural and probable consequence of the act or omission,
5. the great bodily injury or death, and
6. without which the great bodily injury or death would not have occurred.²⁰

The injury or death need not be caused by the gunshot wound. The enhancement applies even when something else causes the alleged victim’s injury or death. The only requirement is that the gunshot approximately caused the injury or death.²¹

Example: You shoot at two rival gang members in a car, who then accidentally kill another driver while fleeing the scene. A court is liable to apply the “25 years to life” sentencing enhancement because your firing your gun set in motion a chain of events that naturally and proximately led to the child’s death.²²

Example: You fire at an officer, who breaks his ankle while fleeing you. If a jury decides that the officer’s broken ankle is a great bodily injury, the court can sentence you to 25 years to life under California’s “10-20-life” law.²³

3. Does “10-20-life” apply to gang members who do not personally use the gun?

Normally California’s “10-20-life” law only applies to someone who personally uses or discharges a gun.

However, there is a gang member exception to this law. It makes the enhancement applicable to all principals convicted of a serious felony if:

1. the underlying felony is committed for the benefit of a criminal street gang, and
2. any principal involved in the crime personally uses or discharges a gun.²⁴

As defined in the “California Street Terrorism Enforcement and Prevention Act,” a “criminal street gang” is:

1. an ongoing association of three or more persons with a common name or common identifying sign or symbol,
2. which has as one of its primary activities the commission of one or more of certain criminal acts, and
3. which includes members who – either individually or collectively – have engaged in a pattern of criminal gang activity.²⁵

Conduct is “for the benefit of a criminal street gang” if it “willfully promotes, furthers, or assists” members of the gang. Note that you do not need to be a gang member yourself. The law only requires that your conduct benefit a gang.

A “principal” involved in a crime is anyone who actively and directly commits the act or aids and abets in its commission.²⁶ If you are a bystander – or your actions only indirectly help the gang commit a crime – the enhancement does not apply.

Example: You and some of your fellow gang members get into a fight, resulting in the death of a rival gang member. Under California’s aiding and abetting laws, you are liable for murder, even if you did not personally kill the victim. Plus because the crime involved the use of a firearm and was committed for the benefit of a gang, you are subject to the 25 years to life enhancement in addition to and consecutive to your sentence for murder.²⁷

The gang exception to California’s “use a gun and you’re done” law is different from California’s gang enhancement under Penal Code 186.22 PC.  That sentencing scheme applies to all gang activity and does not specifically address gun use.

It is possible to be sentenced under both Penal Code 12022.53 PC and Penal Code 186.22 – but only if you personally use or discharge a gun.

4. Can I fight the penalty enhancement?

In order for a judge to enhance your sentence under California’s “10-20-life ‘use a gun and you’re done'” law, the prosecutor must prove all the required elements beyond a reasonable doubt. If the prosecutor fails to prove even one element, you are not subject to a penalty enhancement under Penal Code 12022.53.

Examples of possible legal defenses to the “10-20-life” enhancement include (but are not limited to):

4.1. You did not commit an underlying felony that was subject to the “10-20-life” enhancement.

Penal Code 12022.53 enhances the penalty for the commission of certain underlying felonies. It follows, therefore, that if you are not convicted of an underlying felony that triggers the statute, you cannot be sentenced to an enhancement.

Example: At trial a jury finds you not guilty on a mayhem charge but guilty of being an accessory after the fact.²⁹ You are not subject to the “10-20-life” enhancement because you were not found guilty of mayhem, but only of being an accessory after the fact, a felony not covered by PC 12022.53.³⁰

You are not subject to the “10-20-life” enhancement because you were not found guilty of mayhem, but only of being an accessory after the fact, a felony not covered by PC 12022.53.

4.2. You did not personally use a gun during the commission of a crime

In order to sentence you under California’s “10-20-life” law, the prosecution must prove that you personally used a gun during the commission of an applicable felony.

Even if you committed one of the felonies subject to Penal Code 12022.53, you are not subject to the enhancement if you did not personally use a gun.

Example: You and your friend are found guilty of carjacking law (PC 215). However, only your friend pulled a gun on the victim.

So although you are guilty of a felony enumerated in Penal Code 12022.53, you are not subject to the “10-20-life” enhancement since you did not personally use a gun.

4.3. Self-defense / defense of others

The sentencing enhancements listed under Penal Code 12022.53 PC do not apply to situations involving lawful self-defense.³¹

California’s self-defense laws allow you to reasonably defend yourself or another from imminent great bodily harm or unlawful touching. Though you must use only the amount of force required to counter the attack against you or another person.³²

This means that if the prosecutor/judge/jury determines that you only used or fired your gun because you reasonably feared imminent harm to, or unlawful touching of, yourself or of someone else, you should not receive a sentence enhancement for using a gun.

However, you may still face penalties for violating other California gun laws including (but not limited to):

• Penal Code 25850 PC – carrying a loaded firearm,
• Penal Code 29800 PC – being a felon with a firearm (if you are someone prohibited from possessing a firearm),
• Penal Code 16590 PC – possessing a generally prohibited weapon, or
• Penal Code 30600 PC – possessing assault weapons.

Compare with “imperfect self-defense”

While lawful self-defense exempts you from California’s “10-20-life” law, imperfect self-defense does not.³³ “Imperfect” self-defense takes place when you have an honest but unreasonable belief in the need to defend yourself or another person.

Example: While standing at a red light, you realize that the driver and passenger in the car next to you are yelling at you. Scared, you pull out your gun, order them out of the car, and drive away.³⁴

Even though you only engaged in carjacking because you honestly believed you were in danger, the law views this act as unreasonable.  As a result, it does not excuse your conduct for “using” your gun.

5. Does “10-20-life” violate the 5th Amendment’s double jeopardy clause?

The Fifth Amendment of the United States Constitution contains what is commonly known as the “Double Jeopardy Clause.”³⁵ Among its other guarantees, the Double Jeopardy Clause protects against multiple punishments for the same offense.³⁶

Arguably, the use of a gun during the commission of a felony is punished by the sentence for that crime.

Nevertheless, courts have consistently held that California’s “10-20-life ‘use a gun and you’re done'” law does not violate the double jeopardy clause of the 5th Amendment.³⁷ This is because the California Legislature intended to punish both

• the underlying felonies and
• the use of such guns in connection with serious crimes.³⁸

6. SB 620 – judges’ discretion not to impose the 10-20-life enhancement

Prior to 2018, the imposition of the 10-20-life firearm enhancement was mandatory. This sometimes led to overly harsh results.

Then in 2017, the California Senate passed SB 620. Judges now have the discretion to dismiss a firearm enhancement under PC 12022.53 if doing so is in the “interests of justice.” ³⁹

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