PC § 12022 – Armed with a Firearm During the Commission of a Felony

California Penal Code § 12022 PC is a sentencing enhancement that adds from one to five years of additional prison time for felony offenses in which you

• are armed with a firearm, or
• use a deadly weapon.

These are the specific sentencing enhancements and the corresponding prison term:

armed with firearm in the commission of a felony (or attempted felony)	1 year
armed with assault weapon, machine gun, or .50 BMG rifle in commission of a felony	3 years
used deadly/dangerous weapon in commission of a felony	1 year
used a deadly/dangerous weapon in commission of felony carjacking	1, 2, or 3 years
armed with firearm in commission of certain felony drug crimes	3, 4, or 5 years

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,
• were arrested following a coerced confession, and/or
• were arrested without probable cause.

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

• 1. What is the sentencing enhancement under PC 12022?
• 2. What if I was armed in the commission of a felony?
• 3. What if I actually use a deadly weapon?
• 4. How can a defense attorney help?
• 5. Related offenses

1. What is the sentencing enhancement under PC 12022?

Penal Code 12022 PC is the California statute that imposes an 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.¹

A “dangerous or deadly weapon” for purposes of this section is a weapon other than a firearm.

Note that Penal Code 12022 punishes the possession of a firearm. The use of a firearm during the commission of a felony is punished by a different California statute.

The enhancements under this statute subject you to several years in California state prison. This time period is in addition and consecutive to the punishment that you receive for the underlying felony offense.

2. What if I was armed in the commission of a felony?

The basic enhancement, per this statute, is an additional one year in prison for being armed with a firearm during the commission of a felony.

This additional time may change if you either:

• committed a felony while possessing an assault weapon, or
• committed a certain drug offense.

Possession of an assault weapon

If you commit a felony, while armed with a firearm, and the firearm was:

• an assault weapon,
• a machine gun, or
• a .50 BMG rifle,

you face not an additional one year in prison, but an additional and consecutive three years in prison.²

Drug offense

Certain felony California drug offenses carry an increased enhancement under Penal Code 12022. These offenses include (but are not limited to) violations of:

• Health and Safety Code 11351, California’s “drug possession for sale” law, and
• Health and Safety Code 11352, California’s “transporting or selling drugs” law.

If you were personally armed with a gun during the commission of one these offenses, you may face an additional and consecutive prison term of:

• three,
• four, or
• five years.³

If you did not personally carry a firearm, but you knew that another principal was armed with a gun, then the enhancement will be an additional and consecutive prison term of:

• one,
• two, or
• three years.⁴

3. What if I actually use a deadly weapon?

Penal Code 12022b says that if you use a deadly or dangerous weapon during the commission of a felony, then you will face an additional and consecutive one year in prison.⁵

If you used a deadly or dangerous weapon in a felony carjacking, per PC 215, then the enhancement will be an additional and consecutive prison term of:

• one,
• two, or
• three years.⁶

4. How can a defense attorney help?

Three common defenses that our defense attorneys use to fight PC 12022 charges are:

1. no felony,
2. coerced confession, and/or
3. no probable cause.

No felony

PC 12022 only applies if you committed a felony. It is always a defense, therefore, to show that there was no underlying felony offense. For example, maybe you committed a California misdemeanor or an infraction.

Coerced confession

California law states that police may not use overbearing measures to coerce a confession.

If you can show that the police coerced you into a confession, then:

• the judge may exclude the confession from evidence, or
• the case could get dropped altogether if you got pressured into confessing to a crime you did not commit.

No probable cause

The Fourth Amendment to the U.S. Constitution says that police must have probable cause before they can detain or arrest you for a crime.

If you were arrested for violating PC 12022, and there was no probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. This exclusion could result in the dismissal or reduction in charges.

5. Related Offenses

There are three crimes related to possessing a gun during the commission of a felony. These are:

1. possessing ammunition designed to penetrate metal or armor – PC 12022.2,
2. personally using firearms during the commission of a felony – PC 12022.5, and
3. furnishing with a firearm during the commission of a felony – PC 12022.4.

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.⁷

Personally using firearms during the commission of a felony – PC 12022.5

California Penal Code 12022.5 creates a sentencing enhancement of between three to ten years if you personally use a firearm during the commission or attempted commission of a felony.⁸

Furnishing with a firearm during the commission of a felony – PC 12022.4

Penal Code 12022.4 PC makes it a crime to furnish, or attempt to furnish, a firearm to someone else for use in a felony.⁹

Punishment under this enhancement is an additional term of one, two, or three years in prison.¹⁰

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