Californians are no longer subject to a mandatory sentence enhancement for use of a firearm while committing or attempting to commit a felony under state law. Senate Bill 620, effective as of January 1, 2018, amended section 12022.53(h) of the Penal Code of California to make firearm use enhancement discretionary. A state court judge in California may strike or dismiss a firearm use enhancement if doing so would be in the interest of justice. This stands in contrast to federal law, which still requires a mandatory-minimum prison term for possessing a gun during commission of a drug offense or a violent crime.
In California, it is more important than ever for a person charged with a felony involving a firearm to retain an attorney who has specialized knowledge of firearm use enhancements. Defendants and their attorneys now have an opportunity to persuade state courts against imposing the firearm use enhancement. This even includes some cases where firearms enhancements have been ordered. The California Court of Appeal for the Second District just ruled this month in Almanza that the amendment applies retroactively to benefit defendants whose cases were on appeal when the law changed.
Before the amendment, Penal Code 12022.53 automatically added to a sentence for certain violent felonies 10 years’ jail for “using” a gun, 20 years’ jail for firing a gun, or 25 years’ jail to a life sentence for killing or seriously injuring another person with a gun. For remaining felonies, individuals who personally used a firearm or assault weapon in the commission of a crime were automatically subject to an additional and consecutive prison term of 3, 4, or 10 years for a firearm, or 5, 6 or 10 years for an assault weapon. It is laudable and sensible that firearms enhancements are no longer automatic.
In California, mandatory firearms enhancements resulted in countless unreasonably high sentences, especially in cases where the firearms were not operable or loaded. The social costs of mandatory firearms enhancements outweighed any purported public safety benefit. In debate about Senate Bill 620, Californians for Safety and Justice presented research to the Senate showing that firearms enhancements disproportionately increased racial disparities in California’s prison populations, and greatly increased the population of incarcerated persons, without deterring crime.
As a defense attorney in Los Angeles who specializes in violent crimes, I also saw firsthand how firearms enhancements affect people already serving their sentences. Enhanced sentences served for firearms use are sometimes the only obstacle to early parole for some persons under Proposition 57. For example, an individual convicted of assault with a firearm on a peace officer may be subject to an additional term under Penal Code section 12022.53. Any violation of PC 12022.53 is deemed a violent felony under PC 667.5(c), which makes that individual ineligible for early parole consideration under Proposition 57. However, without the additional term under PC 12022.53, that same offender would be eligible for early parole under Proposition 57 because assault with a firearm on a peace officer is not a violent felony under Penal Code section 667.5(c).
Discretionary firearm enhancements allow courts to tailor sentences to each case and offender. However, it is likely that firearm use enhancements will continue to be imposed in many-if not most-state felonies where firearms are used. One reason is that courts will carefully examine the aggravating features of cases involving firearms to decide what enhancements should apply. For instance, in Almanza, the Court decided not to remand the case to trial court to reconsider imposing a lower sentence without firearm enhancements in part because of the case’s egregious facts.
Defense lawyers must respond by taking a meticulous approach to trial advocacy, which includes putting on the record all mitigating factors in their cases that would weigh in favour of striking firearms enhancements. This includes thinking ahead to how firearms enhancements affect parole eligibility. Such submissions are crucial to persuade a trial judge to strike or dismiss a firearms use enhancement, as well as to protect the record for appeal.
The changes to section 12022.53 create room for defense attorneys to advocate for lower, more reasonable sentences for their clients. Individuals charged with felonies involving firearms should look for a lawyer who has a technical understanding of firearms enhancements, preferably under both state and federal law. Courts will be listening closely to defense attorneys’ submissions against firearms enhancements, and attorneys must be prepared at all stages of litigation to address how firearms enhancements affect several dimensions of a criminal case.
Karen L. Goldstein specializes in state and federal violent crimes as well as felonies where firearms are typically used, such as drug offenses. Please call (888) 445-6313 for more information.