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New California Law Gives Judges Discretion on Firearms Sentencing Enhancement

December 3, 2017

Under a new law, a firearms sentencing enhancement will not be mandatory

 New California Law Gives Judges Discretion on Firearms Sentencing EnhancementCalifornia law currently punishes the use of a firearm in the commission of a felony harshly. A prosecutor can not only charge a defendant with the underlying felony, but request a sentencing enhancement for the use of a firearm — even if the firearm was not actually operated or engaged in any way. If the firearm enhancement is found or admitted, the law requires the court to add a term to the sentence. This term will vary based on the underlying crime and the type of firearm used, and can range from as low as 3 years to as much as 20 years. As the law stands, this additional sentence is mandatory. This enhancement is one of the few sentencing enhancements under California law that is mandatory, and that does not allow for judicial discretion.

Under the current law, the firearm sentencing enhancement produces severe results. For example, if a person is convicted of felony assault, he or she will be sentenced to between 2 and 4 years in prison. However, if that same person used a firearm (not an assault weapon), then the judge is required to add 3, 4 or 10 years to the prison term — extending the sentence range to 5 to 14 years instead. As an Orange County criminal defense lawyer can tell you, it is not unusual to see a sentence dramatically increased based on the firearm sentencing enhancement.

This will all change on January 1, 2018, as a new law signed by Governor Jerry Brown will go into effect. Under this law, Penal Code 120222.5 will be changed to give far more discretion to courts. This change to the law was inspired by the case of a 17 year old who was convicted for a drive-by shooting where he did not actually shoot the gun. Despite this, the judge was required to sentence him to 25 years due to the sentencing enhancement.

This change to the law will not actually get rid of the sentencing enhancement for the use of firearms during the commission of a felony. Instead, it gives courts discretion by removing the “mandatory” portion of the law. Under the revised version of Penal Code 120222.5, judges can, in the interest of justice, strike or dismiss the enhancement at sentences. The term “in the interest of justice” is not defined by the statute, but it typically means where a court finds that there are circumstances that warrant not applying the sentencing enhancement. For example, in the case of the 17 year old above, a judge may have found that it was in the interests of justice to not sentence him to 25 years in jail when he did not actually use a gun. Or in the case of a victim of domestic violence, a judge may determine that it is in the interest of justice to not apply the firearm sentencing enhancement for threatening an abuser with a gun to get him or her to stop the abuse.

If you have been charged with a crime involving the use of a firearm, you will need a skilled Orange County criminal defense lawyer to defend you. Contact the Chambers Law Firm today at 855-397-0210 or dchambers@clfca.com to schedule a free initial consultation.

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