Under California Penal Code section 12022.5, when a person uses a firearm during the commission of a felony, he or she will almost certainly be charged not only with the felony conduct but also with an enhancement for the use of the firearm. The firearm need not be engaged or even operable for the enhancement to attach. If the defendant is convicted of the felony and the firearm enhancement is found or admitted to be true, the law requires the court to add an additional and consecutive term to the sentence. The term, depending on the type of firearm used and on the underlying crime, can range from 3 years imprisonment up to 20 years. The sentence is mandatory.

For example, a person convicted of felony assault with a non-assault weapon firearm will face a sentence of 2, 3 or 4 years in prison. But because he or she used a firearm, on top of that sentence, will be an additional 3, 4, or 10 years for use of the firearm. The court can choose the low, middle, or high term depending on a variety of factors but the court must order at least the low term.

Beginning January 1, 2018, changes to Penal Code section 12022.5 go into effect that will give more discretion to the court. The bill, which was signed into law by Governor Brown last week, that makes these changes was introduced after a California senator recognized the inequitable result when a 17-year-old was convicted for a drive-by shooting. The teen was in the car but denied that he was the one who shot the gun. Following the conviction, the judge had no choice but to sentence the teen to 25 years in prison because of the enhancement.

While the firearm enhancements remain, the courts will be able to strike or dismiss the enhancement. Under current law, the court has no such discretion. The new law will permit the court, in the interest of justice, to strike or dismiss the enhancement at sentencing. What this means is that the court is no longer required to impose the enhanced sentence. But that doesn’t mean the courts will always strike or dismiss the enhancement, but it provides an opportunity for the defense to argue that the court should.

The legal term of art “in the interest of justice” is seen often in statute. But what does it mean? There is no precise answer and the courts are provided with no specific guidelines defining the term. It’s sort of an “I know it when I see it” standard and not all judges know and see the same thing. But typically, the interest of justice refers to either extenuating circumstances relative to the defendant or circumstances that would benefit society. For example, let’s say a mentally disabled person after being ruthlessly bullied, confronted his bully with a gun and then assaulted the bully by hitting him repeatedly. Charge and convicted of felony assault with a firearm enhancement would mean a minimum of 3 years tacked on to the defendant’s sentence. Under the new law, a judge might determine that under the circumstances, the defendant should not have to serve an extended sentence just because he had a gun in his hand. In such a case, the judge might strike the firearm enhancement in the interest of justice.

In addition to the firearm enhancement, the new law will also give the courts discretion to strike or dismiss the 10-year sentence enhancement currently required when a firearm is used in the commission of certain enumerated crimes under Penal Code section 12022.53.

The firearm enhancement is one of the few sentencing enhancements in the California Penal Code that is mandatory at sentencing. The new law will allow judges to consider the facts of each case and use judicial discretion in sentencing on the enhancement, as is already statutorily allowed on most sentencing enhancements. It is a welcome change in the criminal defense community; laws that tie the court’s hand at sentencing are inherently inequitable.

William Weinberg has been practicing criminal defense in Orange County for almost 25 years. If you are facing charges with a firearm enhancement, Mr. Weinberg may be able to convince the court to dismiss the enhancement. You can contact him for a complimentary consultation at 949-474-8008 or by emailing him at