Personal Use of Firearm Enhancements

In California, a criminal defendant can have an additional penalty of ten years, twenty years, or life in prison for using a gun during the commission of a crime. The gun enhancement does not apply to every crime, there are nineteen specific criminal offenses that can result in an additional penalty for using a gun.

To prove that a defendant is guilty of personally using a firearm, a prosecutor must be able to establish the following elements:

1. The defendant is guilty of an eligible firearm enhancement crime;
2. The defendant intentionally displayed the firearm in a menacing manner; OR
3. The defendant intentionally fired the firearm; OR
4. The defendant intentionally fired the firearm which directly resulted in someone’s death.

Gun enhancements under California Penal Code Section 12022.53 apply to nineteen specific crimes that include the following: murder, mayhem, kidnapping, robbery, carjacking, assault with intent to commit a specified felony and rape.

Other similar or related offenses include:

1. Murder – California Penal Code Section 187 PC
2. Robbery – California Penal Code Section 211 PC
3. Carjacking – California Penal Code Section 215 PC
4. Brandishing – California Penal Code Section 417 PC

A common defense to an allegation of a gun enhancement is self defense or defense of others. If a person believes that they are in the immediate danger of being killed or injured, and they use force that is reasonably necessary to prevent or stop the harm, and they use no more force than required, they may have a valid self defense claim. Additionally, another defense to an allegation of a gun enhancement is that the defendant did not commit the underlying crime. If the prosecution cannot prove that a defendant is the one responsible for committing the gun enhancement eligible crime, the enhancement cannot be applied.

Should a defendant use a gun during the commission of one of the nineteen enumerated felonies they will face an enhancement of 10 years in addition to the penalty imposed on the underlying offense itself. If a defendant actually fires a gun during the commission of one of the enumerated felonies they will face a penalty enhancement of 20 years. Lastly, should the defendant shoot the firearm and actually kill someone during the commission of one of the enumerated felonies they will face an enhancement of 25 years to life in prison.

For those who are not citizens of the United States, which includes: legal permanent residents, green card holders, those present on a valid visa, and those without legal status, a conviction for crime with the added penalty for using a firearm can result in deportation, exclusion from admission or denial of naturalization. This is why it is extremely important that anyone who has been accused, investigated, arrested, or charged with a crime that alleges a gun enhancement should contact a skilled criminal defense attorney.

Being accused of crime involving a gun can lead to serious consequences for those convicted. As a result, if you or someone you know have been accused of a crime involving a gun, it is critical that you meet with an experienced Los Angeles criminal defense attorney right away. Los Angeles Criminal Defense Attorney Michael Kraut is a former Deputy District Attorney with over 14 years of prosecutorial experience who has handled serious offenses of this nature as both a prosecutor and a defense attorney. In certain circumstances, Mr. Kraut is able to intervene before charges have been filed in order to present a defense to the detective or filing prosecutor and avoid criminal filing altogether.

For more information about crimes involving guns, and to schedule your free consultation, contact Los Angeles Criminal Defense Attorney Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.