Guns and Gangs Equal Long Prison Sentences in California

In California the criminal laws impose harsh penalties on gun charges involving gang members.  These punishments are called sentence enhancements. A sentence enhancement under Pen C §12022.53(b), (c), or (d), for using or discharging a firearm in the commission of certain felonies may be imposed against a defendant if the jury finds that (1) the defendant committed a specified felony for the benefit of a criminal street gang in violation of Pen C §186.22(b), and (2) any principal used or discharged a firearm in the commission of the felony. Pen C §12022.53(e)(1). This provision imposes vicarious liability under Pen C §12022.53 on a defendant in a gang case who does not personally use the weapon. For example, according to one Long Beach Criminal Gang Attorney, the Courts have ruled that the law does not violate equal protection by treating aiders and abettors in killings for the benefit of a street gang more severely than aiders and abettors in killings for the benefit of other equally dangerous criminal associations, such as drug cartels and terrorist organizations). Although the defendant must first be convicted of the underlying offense before the enhancement may apply, the prosecution need not plead and prove the conviction of the principal who discharged the firearm.

A court may impose both a Pen C §186.22(b)(1) and a Pen C §12022.53 enhancement if the trier of fact finds that the defendant personally used or personally discharged a firearm in the commission of the offense. If a person other than the defendant used or discharged a firearm in the commission of the offense, the court may only impose the Pen C §12022.53 enhancement. This type of charge is commonly seen in the Long Beach Court.

In some instances, use of a gun can mean life in prison.  For instance, the criminal court must impose the enhancement term of 25 years to life under Pen C §12022.53(d) on a defendant who personally discharges a firearm causing death in the commission of a murder, notwithstanding the fact that the defendant is convicted of first degree murder with gang-murder special circumstances within the meaning of Pen C §190.2(a)(22) and sentenced to life imprisonment without the possibility of parole.  This is part of the “use a gun go away for life” legislation created in the 90’s.

A defendant who carries a loaded or unloaded firearm on his or her person (or in his or her vehicle) during the commission, or attempted commission, of a street gang crime under Pen C §186.22(a) or (b) is subject to an additional enhancement of one, two, or three years. Pen C §12021.5(a). A two-, three-, or four-year enhancement must be imposed on a defendant who carries a loaded or unloaded firearm with a detachable shotgun magazine, detachable pistol magazine, detachable magazine, or belt-feeding magazine. (Reference, CA BenchGuide)

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: