California Penal Code 12022.3 PC is a firearm sentencing enhancement for someone who uses or possesses a gun during the commission of some sex crimes, such as Penal Code 261 PC rape, Penal Code 286 PC sodomy, and Penal Code 288 PC lewd acts with a minor.
These enhancements will expose the defendant to a certain number of years in state prison and are in addition to the penalties for the underlying sex offense. Notably, PC 12022.3 is typically filed when someone uses or possesses a gun while committing specific sex crimes.
Simply put, suppose you're convicted of an eligible sex crime involving a firearm or deadly weapon. In that case, depending on the circumstances, you could be facing up to an additional ten years in prison just for the firearm enhancement.
PC 12022.3. says, “For each violation of Section 220 involving a specified sexual offense, or for each violation or attempted violation of Section 261, 264.1, 286, 287, 288, or 289, or former Section 262 or 288a, and in addition to the sentence provided, a person shall receive the following:
(a) A three-, four-, or ten-year enhancement if the person uses a firearm or a deadly weapon in the commission of the violation.
(b) A one-, two-, or five-year enhancement if the person is armed with a firearm or a deadly weapon.”
Penal Code 12022.3 – Quick Facts
There are some essential facts you should know about Penal Code 12022.3 PC, use of a firearm in the commission of a sex crime, including the following:
- The “commission” of a sex offense does not end when it's completed but rather will continue if the perpetrator has control of the victim.
- You could be found guilty of the PC 12022.3 enhancement even if you did not display the firearm to the victim after completing the sex act.
- “Use of a firearm” in the context of this law means using a firearm in the commission of specified sexual offenses.
- “Armed with a firearm” applies when you are simply armed with a firearm during the commission of specified sexual offenses.
- Being "armed with" a gun does not mean it was used; rather, it implies that you possessed a firearm while committing the crime.
- The "use" of a firearm indicates the weapon was actively involved in committing the sex crime, such as firing, brandishing, or using a weapon to strike the victim.
- PC 12022.3 applies to using any deadly weapon, not just a firearm; a deadly weapon is any weapon or object capable of producing death or great bodily harm, such as a knife.
- The PC 12022.3 sentencing enhancements are additional and consecutive to the original sentence, meaning you are not allowed to serve the original and enhanced sentence simultaneously.
- Sentencing enhancements apply per each violation, meaning if you were convicted of rape and sodomy in the same crime while using a firearm, the sentencing enhancement would apply for each count.
What Are the Eligible Sex Crimes?
California Penal Code 12022.3 PC applies to specific sex offenses, such as the following:
- Penal Code 261 PC – Rape,
- Penal Code 264.1 PC – Gang rape in concert,
- Penal Code 286 PC – Sodomy,
- Penal Code 289 PC - Penetration with a foreign object,
- Penal Code 288 PC – Lewd acts with a minor,
- Penal Code 287 PC – Oral copulation with a minor.
What are Related Crimes?
Several California laws are related to Penal Code 12022.3 PC use or possession of a firearm in the commission of a sex crime, such as the following:
- Penal Code 12022 PC - armed with a firearm in the commission of a felony. This sentencing enhancement adds one to five years to a prison sentence for felonies where the defendant was armed with a firearm. In other words, felonies involving firearms are more severe and carry significant punishments in California.
- Penal Code 12022.4 PC - furnishing with a firearm during the commission of a felony. This law makes it a crime to furnish or attempt to provide a firearm to another person to use in a felony. If convicted, this enhancement includes up to three years in state prison.
- Penal Code 12022.5 PC – personally using a firearm during the commission of a felony. This sentencing enhancement carries between three to ten years and applies when you personally use a firearm during the commission or attempted commission of a felony offense.
- Penal Code 12022.53 PC – personally using a firearm during the commission of a serious felony, called California's “10-20-life use a gun and you're done” law. This sentencing enhancement applies when you use a firearm during certain felony crimes, such as PC 187 murder, PC 203 mayhem, PC 207 kidnapping, and PC 211 robbery. The enhancement includes an additional and consecutive ten years in prison for the use of a gun, 20 years for firing a gun, or 25 years to life for killing or seriously injuring someone with a gun.
What Are the Enhanced Penalties?
The possible enhanced penalties related to Penal Code 12022.3 depend on whether you were "armed with" or "used" a firearm during the commission of the sex offense and include the following enhancements:
- Armed with a Firearm: The penalty is an additional and consecutive term in state prison for one, two, or five years.
- Use of a Firearm: The penalty is an additional and consecutive term in state prison for three, four, or ten years.
What is the PC 12022.3 Defenses?
If you need to defend against the sentencing enhancements under Penal Code 12022.3 PC, our California criminal defense attorneys can use different strategies, as discussed below.
Maybe we can argue that you didn't possess a weapon. Perhaps we can prove that you did not have a firearm or deadly weapon during the commission of the alleged sex crime, which would eliminate this sentencing enhancement.
Maybe we can argue that you did not commit a qualifying sex crime. Perhaps you did commit a sex crime, but it was not eligible for an enhancement. While facing other penalties, you could avoid the harsh penalties under PC 12022.3.
Maybe we can argue that you did not know the weapon. Perhaps a weapon was present, but you were unaware of its presence and were not actively possessing or using it. Maybe we can argue that you were falsely accused. Perhaps the accuser is seeking retaliation for something, or they assumed you had a weapon.
Perhaps we can negotiate with the prosecutor prefiling to avoid criminal charges, called a “DA reject.” Maybe we can arrange for reduced charges or a case dismissal.
Notably, most of these defenses will not necessarily exonerate you from the alleged sex crime but rather keep you from serving additional time in prison. You can contact us for a free case review. Cron, Israels & Stark is based in Los Angeles, CA.
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