Possession of a Firearm During a Felony (Penal Code § 12022) in California

Facing Firearm Enhancement Charges in California?

If you’ve been charged with a felony in California, and prosecutors allege that you—or someone else involved—was armed with a firearm during the commission of that crime, you could face a sentencing enhancement under Penal Code § 12022. That means additional, consecutive prison time, even if you didn’t personally use the weapon.

At David P. Shapiro Criminal Defense Attorneys, we understand how enhancements like these can turn an already serious charge into a devastating one. Our team is here to help you understand your rights, identify weak points in the prosecution’s case, and fight for the best possible outcome in your San Diego criminal case.

What is Penal Code § 12022?

California Penal Code § 12022 adds extra prison time to a felony conviction if a person is found to have been armed with a firearm or used a deadly weapon during the commission (or attempted commission) of a felony offense.

These enhancements apply to:

• Personal arming (you had the firearm)
• Principal liability (someone else involved had the firearm and you knew about it)

The additional sentence is served consecutively, meaning it is tacked on to any punishment for the underlying felony.

Breakdown of PC § 12022 Enhancements

1. Basic Firearm Enhancement – PC § 12022(a)(1)

If you are armed with a firearm in the commission of a felony or attempted felony, you face:

• 1 year of additional and consecutive prison time

This applies even if you didn’t use the weapon—just having it available or within reach (“armed”) is enough.

If you’re part of a group committing the crime and any one of the principals is armed, everyone can potentially face the enhancement—even if you didn’t personally carry the weapon.

Important: This enhancement doesn’t apply if being armed is already part of the crime. For example, felon-in-possession charges already include firearm possession.

2. Assault Weapons, Machine Guns, and .50 BMG Rifles – PC § 12022(a)(2)

If the firearm involved is classified as:

• An assault weapon (as defined in PC § 30510 or § 30515),
• A machine gun (PC § 16880), or
• A .50 BMG rifle (PC § 30530),

Then the enhancement increases to:

• 3 years of additional and consecutive prison time

Again, this applies to anyone involved in the felony if even one participant had one of these weapons.

3. Use of a Deadly or Dangerous Weapon – PC § 12022(b)

If you personally use a deadly or dangerous weapon (not limited to firearms) during the commission of a felony, the court can impose:

• 1 additional year in state prison

This applies to weapons such as:

• Knives
• Blunt objects
• Tools or any item used as a weapon

If the underlying felony is carjacking or attempted carjacking, the enhancement increases to:

• 1, 2, or 3 years

Additionally, if the weapon used is owned by the defendant, the court may declare the weapon a nuisance and order it to be destroyed under PC §§ 18000–18005.

4. Drug Felonies and Firearms – PC § 12022(c) and (d)

If you are personally armed with a firearm during the commission of specific California drug crimes (such as drug possession for sale or manufacturing), the enhancement is:

• 3, 4, or 5 years of additional and consecutive prison time

Covered Health & Safety Code offenses include:

• § 11351 – Possession for sale of a controlled substance
• § 11378 – Possession for sale of methamphetamine
• § 11379 – Transportation of a controlled substance
• § 11379.6 – Drug manufacturing

If you aren’t personally armed but you’re a principal in the offense and knew that someone else was armed, you may still face:

• 1, 2, or 3 years of additional prison time under PC § 12022(d)

When Does PC § 12022 Not Apply?

The enhancement under PC § 12022 will not apply if:

• Being armed is already part of the underlying charge
• The weapon was not accessible or functional
• The prosecution cannot prove knowledge of the other principal’s firearm

These situations provide opportunities for a strong defense strategy.

Sentencing Considerations: Judicial Discretion Under PC § 12022(f)

While enhancements under PC § 12022 are typically mandatory, the court may exercise discretion and strike the enhancement in the interests of justice, if:

• The court determines it is an “unusual case”
• The judge states on the record why striking the enhancement serves justice

This discretion is especially relevant in drug-related firearm enhancements under subdivisions (c) and (d). An experienced defense attorney can argue for a Romero-style dismissal of the enhancement when appropriate.

Real-World Impact of Firearm Enhancements

A firearm enhancement can significantly increase your exposure to prison time:

• For example, if you’re convicted of felony burglary (punishable by up to 3 years) and are found to have been armed with an assault weapon, the court can add 3 more years—making it a 6-year sentence.
• If you were involved in a group crime and one person had a firearm—even if you didn’t—you could still face the enhancement.

That’s why it’s essential to have an experienced criminal defense lawyer evaluate the facts and challenge enhancements aggressively.

Defending Against a Penal Code § 12022 Enhancement

At David P. Shapiro Criminal Defense Attorneys, we evaluate every angle when facing a firearm enhancement allegation. Common defense strategies include:

1. You Were Not Armed

We may argue that the firearm wasn’t on your person or within your control or that you were unaware it was present.

2. The Weapon Was Not a Firearm

In some cases, the prosecution may incorrectly label an object as a firearm. We can question whether it legally qualifies.

3. You Weren’t a Principal in the Crime

If you were merely present but not an active participant, you may be excluded from liability for the enhancement.

4. The Firearm Was Not Used During the Felony

If the gun was present but not connected to the commission of the felony (i.e., it was stored or unrelated), the enhancement may not apply.

5. Judicial Discretion to Strike

We can present mitigating factors—such as lack of criminal history, youth, coercion, or minimal involvement—to persuade the court to strike the enhancement under PC § 12022(f).

Why Firearm Enhancements Are So Serious

Firearm enhancements:

• Add prison time
• Often disqualify you from probation or parole
• Count toward California’s Three Strikes Law
• Can lead to longer sentences if you face future charges

Because enhancements are imposed in addition to the base sentence, they often become the primary driver of incarceration length in a felony case.

Accused of Possessing a Firearm During a Felony in San Diego?

If you’re facing a felony charge in California and the prosecution is seeking a sentencing enhancement under Penal Code § 12022, it’s critical to act fast.

Let the team at David P. Shapiro Criminal Defense Attorneys fight for you. We’ve helped countless people challenge enhancement allegations and avoid excessive sentencing.

Contact us today or schedule a confidential consultation online with a skilled San Diego criminal defense attorney.

FAQs – Penal Code § 12022 Firearm Enhancements

Can I get probation if I’m convicted with a firearm enhancement?

In somecases, firearm enhancements under PC § 12022 make you ineligible for probation, but a judge may strike the enhancement .

Does the firearm have to be used for the enhancement to apply?

No. Simply being armed—having the firearm accessible during the felony—is enough for the enhancement to apply.

Can I be held responsible if someone else had the gun?

Yes, under PC § 12022, if you’re a principal in the felony and someone else is armed or uses a weapon, you can still be charged with the enhancement—especially if you knew they were armed.

Is this the same as using a gun during a felony?

No. PC § 12022 penalizes being armed. If you actually use a gun (fire it, brandish it, etc.), harsher enhancements under Penal Code § 12022.5 or § 12022.53 may apply.