Penal Code 12022.53 PC is California’s “10-20-Life use a gun and you’re done” law. This section adds 10 years, 20 years or 25-years-to-life to prison sentences for certain serious felonies when the perpetrator uses a gun in the commission of the crime. 

10-20-Life adds to a felony sentence:

• 10 years imprisonment for “using” a gun,
• 20 years imprisonment for firing a gun, or
• 25 years to life imprisonment for killing or seriously injuring another person with a gun.

These sentences are in addition to…and consecutive to…the sentence for the underlying felony conviction.

Penal Code 12022.53 applies to nineteen specific California serious felonies. It also applies to other felonies “punishable by death or imprisonment in the state prison for life.”

The list of specific offenses to which the “10-20-Life” enhancement applies includes, but is not limited to:

• Murder,
• Kidnapping, 
• Serious sex crimes, including rape, and
• Assaults 
• Hostage taking by prisoners.

Until recently, the “10-20-Life” enhancement was a mandatory minimum sentencing in California.

However, new law gives adjudicators discretion to dismiss a “10-20-Life” enhancement

In 2017 the California Senate passed Senate Bill 620. As of 1^st January, 2018, a judge may strike or dismiss a PC 12022.53 firearm enhancement if it is “in the interest of justice.” The bill made “10-20-Life” a matter of judicial discretion rather than a mandatory minimum sentencing.

Similar to other California gun laws, Penal Code 12022.53 PC is full of legal jargon and technicalities. This can makes it difficult to understand when this sentencing enhancement is applicable and when it’s not.

The California criminal defense attorneys at Spodek Law Group discuss the following below in order to assist you better understand this law:

1. Felonies to which the “10-20-Life law” is applicable 
2. Penal Code 12022.53 PC Penalties
3. “10-20-Life” is applicable to gang members who didn’t personally use the gun
4. Can a defendant challenge the penalty enhancement?
5. “10-20-Life” does not come into conflict with the 5th Amendment’s double jeopardy clause
6. SB 620 – judges’ discretion  to bypass the 10-20-Life enhancement

If you still need more information after reading this, we invite you to contact us at Spodek Law Group.

1. Felonies to which the “10-20-Life law” is applicable

In 1997, the Penal Code 12022.53 PC was enacted. Its goal was to make the use of weapons in the commission of violent offences subject to mandatory minimum jail sentences. It is still one of the worst sentencing methods in the country.

However, the sentencing enhancement for “use a gun and you’re done” does not apply to every case involving unlawful firearm use. It can only be used for sixteen particular felony charges, as well as other felony offenses that are “punishable by death or life in state prison.” These offenses are classified as felonies.

Under this law, “attempts” to commit the majority of these heinous offences are likewise punishable.

This sentencing method does not apply assault with a firearm under California Penal Code 245(a)(2). It does, however, apply to assaulting a peace officer or a fireman with a firearm in violation of Penal Code 245 (d).

2. Penal Code 12022.53 PC Penalties

The Penal Code 12022.53 PC adds an additional and consecutive term of imprisonment for:

• 10 years in prison for “using” a firearm,
• 20 years for firing the weapon, and
• 25 years to life for seriously injuring or killing another person with a firearm.

If more than one of the above applies, the court imposes only the subdivision that carries the most severe consequence.

A brief example of the way California’s “10-20-Life” law works

Assume you are convicted of second-degree robbery under California Penal Code 211 PC.

The crime has a maximum sentence of five years in California state prison.

If you personally used a firearm during the robbery, that sentence increases to 15 years. 

If you fired the weapon, it goes up to 25 years. 

If during that robbery, someone was injured or killed as a result of you firing the gun, you are now looking at 30 years to life in California state prison.

Additionally, probation may not be granted to anyone found guilty under Penal Code 12022.53. You will go to prison if you are convicted of using a gun in the commission of a serious felony.

Let’s examine what it means to use, discharge, or hurt someone with a gun while committing a felony.

10 years imprisonment for “using” a firearm

10-20-Life imposes a 10-year sentencing enhancement to anyone who, during the commission one of the indicated serious felonies, personally “uses” a gun.

The firearm need neither be loaded nor operable for you to face conviction under this sentencing enhancement. Using a gun also doesn’t mean that you fired it.  You personally “use” a firearm, when you intentionally:

1. display the firearm in a threatening way,
2. fire the firearm, or
3. use the gun to strike or hit another person (“pistol whip”).

This definition is similar to “brandishing a firearm” under California Penal Code 417 PC.  Simply put, “using” a gun means you are brandishing your weapon during the commission of one of the enumerated felonies.

The 10-year enhancement can be imposed even if you never pointed the gun at your alleged victim.  So long as the gun helps to facilitate the felony… even if only as a “threat”… you have “used” it.

However, prosecutors would still likely charge you with a firearm sentencing enhancement under firearm sentencing enhancement. Fortunately, this carries a much less severe penalty. You would also likely be charged with violating Penal Code 25400 PC, California’s “carrying a concealed weapon” law.

20 years imprisonment for “discharging” a gun

If you discharge a gun while committing a crime, you will face an additional and consecutive twenty-year sentence enhancement.

25-years-to-life imprisonment for causing great bodily injury or death

Penal Code 12022.53(d) PC carries the possibility of an additional and consecutive 25-years-to-life sentence.

This subsection applies to all of the felonies listed above, and to:

• Penal Code 246 PC California’s  law against “shooting at an inhabited dwelling or occupied car”, and
• Penal Code 12034 PC statute against discharging a gun from a motor vehicle (drive-by shooting).

If you personally and willfully discharge a firearm during the commission of a felony, and the discharge of the handgun proximately causes serious bodily injury or death to anybody other than an accomplice, you will receive a 25-year to life increase.

A significant or substantial physical harm is referred to as a “great bodily injury.” A physical harm does not have to be permanent to be regarded major or noteworthy. 

A significant or substantial physical harm is referred to as a “great bodily injury.” A physical harm does not have to be permanent to be regarded major or noteworthy.

The definition of “proximate cause of damage or death” is an act or omission that initiates a chain of circumstances that results in the great bodily harm or death as a direct, natural, and likely result of the act or omission, and without which the great bodily injury or death would not have transpired.

The gunshot wound does not have to be the cause of the damage or death. Even if the alleged victim’s injury or death is caused by anything else, the augmentation applies. The only stipulation is that the gunfire caused the injury or death at a reasonable distance.

3. “10-20-Life” is applicable to gang members who didn’t personally use the gun

Ordinarily, California’s “10-20-life” rule only applies to people who use or discharge a gun personally.

This rule does, however, have an exception for gang members. It extends the enhancement to all principals guilty of a major criminal if the following conditions are met:

1. Any principal involved in the crime personally uses or discharges a pistol, and 
2. the underlying felony is conducted for the benefit of a criminal street gang. 

If it “willfully promotes, furthers, or aids” members of a criminal street gang, it is “for the benefit of a criminal street gang.” It’s worth noting that you don’t have to be a gang member to participate. The only requirement of the law is that your actions assist a gang.

Anyone who actively and directly commits or assists and abets the commission of a crime is referred to as a “principal” implicated in the crime. The enhancement does not apply if you are a bystander, or if your acts only indirectly assist the gang in committing a crime.

4. Can a defendant challenge the penalty enhancement?

The district attorney must prove all the required elements beyond a reasonable doubt in order for a judge to enhance your sentence under California’s “10-20-Life ‘use a gun and you’re done’” law.   However, if the prosecutor fails to prove even a single element, you are not subject to a penalty enhancement under Penal Code 12022.53.

Examples of possible legal defenses to the “10-20-Life” enhancement include (but are not limited to):

You did not commit an underlying felony that was subject to the “10-20-Life” enhancement.

The penalty for certain underlying offences is increased under Penal Code 12022.53. As a result, you cannot be sentenced to an enhancement if you are not convicted of an underlying felony that triggers the statute.

You didn’t personally use any firearms while committing the crime

The prosecution must prove that you personally used a gun during the commission of an applicable felony in order to sentence you under California’s “10-20-Life” rule.

If you did not physically use a gun while committing one of the offences listed in Penal Code 12022.53, you are not liable to the enhancement.

Claiming self-defense or defense of others

The enhanced punishment provisions of Penal Code 12022.53 PC do not apply to cases of legitimate self-defense. Self-defense laws in California allow anyone to defend themselves or others against impending grievous bodily injury or unlawful touching. However, you must only use the amount of force necessary to defend yourself or another person.

This means that you are not subject to the enhancement for using a gun if the D.A., judge and/or jury concludes that you only used or shot your pistol because you reasonably feared imminent damage to, or illegal touching of,  yourself or someone else.

Nevertheless, you may still face penalties for violating another California gun statute.

5. “10-20-Life” does not come into conflict with the 5th Amendment’s double jeopardy clause

The Fifth Amendment of the United States Constitution enshrines what is commonly referred to as the “Double Jeopardy Clause” in US law.   The Double Jeopardy Clause shields accused persons against multiple punishments for the same offense among other guarantees.

It may be argued that the use of a gun during the commission of a felony is punished by the sentence for that crime.

Nonetheless, courts have, on every occasion, held that California’s “10-20-Life ‘use a gun and you’re done’” law does not violate the double jeopardy clause of the Fifth Amendment.  They have found this due to the fact that the California Legislature intention was to punish both the underlying felonies and also the use of such guns in connection with serious offenses.

6. SB 620 – judges’ discretion to bypass the 10-20-Life enhancement 

Prior to 2018, applying the 10-20-Lifelaw of firearm enhancement was mandatory, which sometimes led to overly harsh outcomes for defendants.

However, in 2017, the California Senate passed SB 620. The court now has the discretion to dismiss the otherwise applicable firearm enhancement under PC 12022.53 if it is in the “interests of justice” to do so.

Call Spodek Law Group for a free consultation about your specific case.