Donte T Wyatt -
If you get a weapon charge, you need a good criminal attorney
There are many statues that prohibit or limit the carrying of weapons under California law. In addition to the
limitations and prohibitions there are a series of statues referred to as “Weapon Enhancements” that increase the
punishment for crime committed while a person either uses or is armed with a weapon.
Penal code section 21310. Except as provided in Chapter 1 (commencing with Section
17700) of Division 2 of Title 2, any person in this state who carries concealed upon the person any dirk or dagger
is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h)
of Section 1170.
In addition, to prohibiting the carrying of a concealed dirk or dagger it is also illegal for a person to carry a
loaded firearm on their person. In order to be convicted of this crime the prosecutor would have to prove the
1. The defendant carried a loaded ﬁrearm on (his/her) person or in a vehicle;
2. The defendant knew that (he/she) was carrying a ﬁrearm;
3. At that time, the defendant was in a public place or on a public street in an incorporated city/in an
unincorporated area where it was unlawful to discharge a ﬁrearm.
A ﬁrearm is any device designed to be used as a weapon, from which a projectile is expelled or discharged through a
barrel by the force of any explosion or other form of combustion. A ﬁrearm also includes any rocket,
rocket-propelled projectile launcher, or
similar device containing any explosive or incendiary material, whether or not the device is designed for emergency
or distress signaling purposes.
As used here, a ﬁrearm is loaded if there is an unexpended cartridge or shell in the ﬁring chamber or in either a
magazine or clip attached to the ﬁrearm. An unexpended cartridge or shell consists of a case that holds a charge of
powder and a bullet or shot.
A ﬁrearm does not need to be in working order if it was designed
to shoot and appears capable of shooting.
In addition, to it being illegal to possess certain weapons in public it is also illegal for any person convicted
of a felony to be in possession of a firearm.
Under California Law the punishment for certain felonies can be increased if a weapon, is possessed or used during
the commission of the felony offense. Having a criminal defense attorney that is familiar with these allegations
can and will be critical to any effective defense. Although most of these allegations add a few years of possible
punishment, there are some that add a significant amount of additional punishment (sometimes more than the crime
committed) and at least one that can lead to incarceration for life.
Penal Code section 12022.5
12022.5. (a) Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a
felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state
prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.
(b) Notwithstanding subdivision (a), any person who personally uses an assault weapon, as specified in Section
12276 or Section 12276.1, or a machinegun, as defined in Section 12200, in the commission of a felony or attempted
felony, shall be punished by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10
While simply being armed with a firearm brings a crime within the meaning of Penal Code section 12022(a)(1),
actually using (displaying or firing the firearm) brings the crime within the meaning of Penal Code section
12022.5(a) it is important to note that the court must impose on of the three terms listed under Penal Code section
12022.5 if the defendant is committed to prison.
TEN, TWENTY, LIFE GUN ALLEGATIONS
Penal Code section 12022.53 is the gun allegation section with the most severe punishments. For example Penal Code
section 12022.53(b) punishes the use of a firearm similar to Penal Code section 12022.5, however instead of having
three terms for the court to choose from the court must impose an additional ten (10) years, which is the upper
term of the three terms listed for penal Code section 12022.5. Penal Code section 12022.53 further requires the
court to impose an additional term or twenty years if the firearm is discharged (PC 12022.53(c)) and an additional
term of twenty-five (25) to life if the gun is discharged and a person (not an accomplice) suffers great bodily
injury or death (PC12022.53(d)). However, Penal Code section 12022.53 only applies to the particular terms listed
in that section. Therefore the prosecutor may only allege a Penal Code section 12022.5 allegation if the person
charged is not accused of committing one of the listed offenses. It is also important to note that if the crime is
committed in furtherance of a criminal street gang any principle can be held liable for an alleged principle using,
discharging or causing great bodily injury or death with a firearm within the meaning of Penal Code Section
12022.53. (a) This section applies to the following felonies:
(1) Section 187 (murder).
(2) Section 203 or 205 (mayhem).
(3) Section 207, 209, or 209.5 (kidnapping).
(4) Section 211 (robbery).
(5) Section 215 (carjacking).
(6) Section 220 (assault with intent to commit a specified
(7) Subdivision (d) of Section 245 (assault with a firearm on a
peace officer or firefighter).
(8) Section 261 or 262 (rape).
(9) Section 264.1 (rape or sexual penetration in concert).
(10) Section 286 (sodomy).
(11) Section 288 or 288.5 (lewd act on a child).
(12) Section 288a (oral copulation).
(13) Section 289 (sexual penetration).
(14) Section 4500 (assault by a life prisoner).
(15) Section 4501 (assault by a prisoner).
(16) Section 4503 (holding a hostage by a prisoner).
(17) Any felony punishable by death or imprisonment in the state
prison for life.
(18) Any attempt to commit a crime listed in this subdivision other than an assault.
(b) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in
subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment
in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.
(c) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in
subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and
consecutive term of imprisonment in the state prison for 20 years.
(d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in
subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a
firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other
than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for
25 years to life.