When you are already facing a serious criminal charge, that's bad enough. But serious crimes with a gun are punished even more severely than the same crimes apart from the use of a firearm.
At Leah Legal, we have deep experience in defending against the full gamut of California criminal charges, including the most serious offenses on the books, like murder, rape, assault, battery, domestic violence, kidnapping, and more. We also have deep experience defending against charges with a gun enhancement or a charge where the use of a firearm is an integral part of the crime's definition.
We do not shy away from the "tough cases," like some other law firms do. If you are facing a charge for a serious crime with a gun, do not hesitate to contact Leah Legal anytime 24/7 by calling 818-484-1100 for a free legal consultation and immediate help in winning your case!
About Guns, Crime, & Punishment in California
Sometimes California's gun laws don't seem to make sense, and not infrequently, they change and flux from administration to administration.
For example, in November of 2017, the sentencing enhancement of 10 extra years of incarceration as a "mandatory minimum" with many crimes involving guns was repealed. Yet, at the same time, additional red tape was added that same year to those selling firearms to presumably law abiding citizens.
Also, some crimes defined as being committed with a firearm, and partly for that reason already having very stiff penalties can still get a firearm use enhancement slapped on the sentence.
And despite the removal of the mandatory minimum requirement, you can still potentially get as many as 10 extra years in prison based on a gun enhancement - it's just not mandatory anymore - it goes on a case by case basis.
After years of low gun crime rates, California saw a surge in crimes committed with firearms between 2014 and 2016 according to California DOJ statistics - and there is every reason to suspect that trend has continued at least into 2018. This upsurge coincided with a national increase in gun use in murders and other felonies, but was particularly disappointing in California after so many efforts to curb gun crimes specifically.
The point is that one can argue California's gun laws reflect an over-reaction to gun-based crimes versus otherwise equivalent crimes. Others say it's the opposite - things are too lenient right now.
But at Leah Legal, we haven't forgotten that many people are falsely charged with crimes, including crimes committed with a firearm, every year in California. And many others are overcharged by overzealous prosecutors OR mitigating circumstances that could get them a lower sentence are ignored by clumsy defense attorneys.
We at Leah Legal know how to fight for your best interests even in criminal defense cases where a gun was allegedly used. We have won for our clients on this class of cases many times in the past, and we stand ready to do the same for you.
California's Sentencing Enhancement for Use of a Firearm
Possessing a firearm while committing a felony will activate California's firearms sentencing enhancement under Penal Code Sections 12021.55 through 12022.55.
As mentioned above, these enhancements have recently been adjusted as far as the mandatory minimums were concerned, but otherwise, they remaind the same.
Note that the gun can be possessed by the defendant or his/her accomplice and it will count the same way. Thus, letting an accomplice be the "gun man" doesn't absolve others assisting in committing a felony crime from any enhancements.
If you are "armed with" a gun during a felony or possess armor piercing ammo, use a firearm while committing certain sex crimes, furnish another with a firearm to help them commit a felony, use assault weapons or machine guns during a felony, or fire a firearm from a vehicle while committing a felony - a gun use enhancement will apply.
The exact number of extra years in jail or prison the enhancement will add to your sentence depends on which specific enhancement rule is in view, the type of gun used, if it was you or an accomplice who used the gun, whether the gun was merely possessed or was used to effect the crime, the nature of the felony the gun use was connected with, and the defendant's past criminal record (if any.)
While the maximum additional years added is 10, it could also be only 2 or 3 years. It all depends on the details of the case.
Common strategies to use against a firearms enhancement are:
- To defeat the underlying felony charge.
- To show you did not personally use the gun to commit the crime.
- To prove police misconduct or an illegal search and seizure took place.
- To argue that mitigating circumstances should cause the enhancement to be dismissed in "the interests of justice" This is possible now because such enhancements are no longer mandatory.
Brandishing a Firearm/Weapon
Another major gun crime, often connected with other serious crimes, is PC 417 Brandishing a Deadly Weapon (in this case, a firearm).
If you exhibit a firearm in the presence of another person in an angry, rude, or threatening way, unlawfully, it's a serious gun crime. Many times, this is done during a domestic or other dispute or in the course of committing another crime.
However, to display a firearm threateningly in self defense or to defend other people is not a crime. Any object that is used in a way capable of inflicting "great bodily harm" is a "deadly weapon." But firearms are easily among the most obvious objects that qualify as deadly weapons under this statute. Even if the gun wasn't loaded at the time, it's still a violation of PC 417 to brandish the weapon. After all, others did not necessarily know it wasn't loaded. But note that BB and pellet guns do not qualify as firearms for the purposes of PC 417.
You do not have to have pointed the gun at the other person or fired it. Nor is it required the other person even saw the gun, but simply that you produced it and others were present at the time. And it is not legally required that the offender intended to actually harm anyone for the manner of gun exhibition to count as "rude, angry, or threatening." Plus, if you intended to threaten the victim, you could also be prosecuted for PC 422 Criminal Threats. However, if you brandished the gun in self defense or in defense of others, were merely showing off your gun but not making a threat, or the allegations are simply trumped up - you are not guilty.
PC 417 can be a misdemeanor or felony offense. As a misdemeanor, it is punishable by a 30 day minimum jail term if it occurs during a fight. Otherwise, it is punishable by 3 to 6 months in county jail. And if done in public, you can get 3 to 12 months and a fine up to $1,000. If you violate PC 417 on a daycare center grounds, while the center is open, you can get a misdemeanor with 3 to 12 months in jail or a felony charge with 16 months to 3 years in state prison. Similar steeper penalties apply if PC 417 violations are done on school grounds or gun threats are directed at an on duty police officer. Those convicted of PC 417 Brandishing a Firearm will likely lose their gun ownership rights if convicted.
Assault with a Firearm
PC 245 deals with another very serious gun crime, assault with a firearm. Even ordinary assault is a serious offense, but when a firearm is used during the assault, the offense becomes much more severe.
"Assault" does not have to involve any actual application of force, but only the attempt to inflict injury or death on another through the application of force. If even the slightest touch occurs, even a touch that causes no physical harm, "assault" becomes "battery."
Assault does require an intention to take such actions as would likely result in bodily harm to another person - an accident or misunderstanding cannot be an assault. It must be a "willful" act. The results or possible results of the assault, however, do not have to be intended. One must have had the ability to accomplish the assault for it to count as assault. Thus, an unloaded gun being pointed at someone can’t be an assault, though it could be brandishing a firearm and making criminal threats. If you intended to bludgeon another person with the unloaded gun, however, then it's still assault.
Assault with a firearm (PC 245a) can be a felony or a misdemeanor, depending on the circumstances of each case. As a misdemeanor, it is punishable by 6 to 12 months in county jail, a fine of up to $1,000, or both. As a felony, it is punishable by 2 to 4 years in state prison, a fine of up to $10,000, or both.
If a machine gun, assault gun, .50 BMG rifle, or semi-automatic firearm was used, assault with a firearm is an automatic felony. But if a "generic" firearm is used (almost all other gun types), it is can be misdemeanor or a felony (that is, it's a "wobbler.")
A felony with "non-generic" guns gets a steeper penalty: 3 to 12 years in state prison.
Assaulting an on duty police officer or fire fighter with a firearm when a reasonable person would have known the identity of these people, is a felony, punishable by 4 to 12 years in state prison.
Also, you can get a "personal use of a firearm" sentencing enhancement added to the charge of "assault with a firearm" even though that charge already includes the fact a firearm was used. This can add 3 to 10 years to a prison term.
Anyone convicted of PC 245a Assault with a Firearm will lose his or her gun ownership rights. And this offense is also normally a "strike" under California's Three Strikes Law, which doubles incarceration terms for a second strike and can get you 25 years to life imprisonment for a third strike violation.
Possible defenses against Assault with a Firearm include:
- You acted in self defense. This only applies if you were in imminent danger of bodily harm or reasonably believed you were. And, the use of force was necessary and you did not use "excessive force" beyond what was necessary.
- You acted to defend others. The same "rules" apply here as to self defense, except that the person in danger of bodily harm was no yourself but someone else.
- Lack of intent. If you only appeared to make an aggressive or threatening action with the gun or there was some kind of misunderstanding or accidental movement involved, you are not guilty because assault cannot occur without the element of intent or "willfulness."
- False accusation. It's not uncommon for a completely exaggerated or totally fabricated story to make its way into court in a serious criminal charge, like that of assault with a firearm. Most commonly, this occurs in intense domestic violence disputes. We at Leah Legal know how to unravel such false accusations with real evidence and stern witness cross-examinations.
Contact Us Today for Immediate Help!
At Leah Legal, we are well seasoned criminal defense attorneys with deep experience in all the ins and outs of California's firearm crimes laws. We will know how to defend you against a charge of serious crimes with a gun in local Los Angeles or Southern California courts.
Don't risk your future by trusting a less experienced law firm with your high profile case. We at Leah Legal can maximize your chances of a dismissal, acquittal, or a favorable plea deal with a reduced charge and/or sentence. We know how to win the best possible outcome to your case!
Call our Los Angeles criminal lawyer anytime at 818-484-1100 for a free, no obligation legal consultation and quick attention to your case. We serve all of Los Angeles and the whole Southern California region.