Does using a gun in a California Penal Code 187 PC murder case make a difference in the potential sentence you're facing?
Usually, the answer to this is a quick yes; it does. If you fire a weapon, technically, the law says that you can have an extra enhancement if you hit somebody.
California Penal Code 12022.53 PC “10-20-life” law imposes additional legal penalties when you commit certain crimes using a gun. It provides an "enhancement" to a state prison sentence for certain serious felony crimes, such as PC 187 murder, if you use a firearm in the commission of the crime.
There's a 25-year enhancement on top of whatever you get for the murder case. Using a weapon during a crime has an extra enhancement.
A whole bunch of things can add additional time in the law – the PC 12022.53 – if you're using a gun to murder.
However, in today's world, where you have a new prosecutor attacking all of these gun laws, the prosecutors on certain defendants often cannot use the gun laws.
Their boss will not let them. In that case, that may cause that 25-year enhancement I mentioned earlier to be struck if the person being charged was not the actual shooter.
But, usually, whether in Los Angeles County or any of the surrounding counties if you use a gun and kill somebody, you're going to be looking at more time than the murder. Let's review further below.
California Senate Bill 1437
Senate Bill 1437 changes California's felony murder rule. It provides a mechanism for a person previously convicted of felony murder or murder under the natural and probable consequences doctrine to seek resentencing.
It potentially allows the release of many inmates in state prisons. The bill changes the felony murder rule to allow resentencing for accomplices already convicted of first-degree.
The felony murder rule is best explained by the convictions of two defendants who robbed a convenience store. Suppose one perpetrator pulled out a gun and shot and killed the cashier during the robbery, but there was no prior plan, called premeditation.
Under the old law, the other perpetrator could also be charged and convicted of first-degree murder even though he did not shoot the cashier. Now, only the person directly responsible for the killing can be charged.
What Is First-Degree Murder?
First-degree murder in California is defined as an unlawful killing with malice aforethought that was premeditated or committed while committing certain other felony offenses. Under Penal Code 189 PC, first-degree murder has occurred when any of the following is true that the murder was:
- premeditated (i.e., planned) and deliberate;
- committed using poison, explosives, or a weapon of mass destruction;
- lay in wait for their victim;
- committed in the context of torture;
- occurred during the commission of one or more specific felonies, such as arson, robbery, kidnapping, burglary, carjacking, and certain sex crimes.
What Are the Penalties for Penal Code 12022.53?
The PC 12022.53 “Use a Gun and You're Done” sentencing enhancement imposes penalties for each type of gun violation:
- Using a firearm means a prison term of up to 10 years will be added to your sentence if you use a gun in the commission of murder. The term “use a gun” is defined broadly but includes displaying a gun;
- Firing a gun during the commission of a crime means an additional 20-year sentencing enhancement. Under the law, discharging a firearm means you intentionally fired the weapon by pulling the trigger, even if the gun misfires;
- Causing great bodily injury or death when using a firearm will enhance a sentence to 25 years to life. This enhancement applies if you intentionally discharged a weapon while committing a felony. A great bodily injury means a significant physical injury, but not necessarily a permanent injury.
Why Do You Need a Criminal Defense Attorney?
So, if you or a loved one is charged with the PC 187 murder, and it is alleged that you used a gun or that somebody else used a weapon, and you're being accused of that murder, you want to get a great criminal defense attorney.
Because sometimes, if your loved one is not the actual shooter and they're not claiming they're the real shooter, an argument could be mounted that they're not responsible for the murder, mainly if the murder occurs during another crime like a robbery.
These robbery or murder charges have been lessened by the passing of SB 1437 discussed above, which says we're not going to let the getaway driver in a murder case be charged with murder anymore.
The person to be charged with murder has to be the actual shooter who killed the person or planned the murder with the actual shooter or be a significant participant in the crime, like a robbery, for example, to be held responsible for the murder.
So, jury instructions have been altered in that scenario. Criminal defense attorneys are trying to argue that if their client didn't kill the person, they should not be responsible for the murder.
If the prosecutors can prove that they were involved in a robbery, for example, but didn't kill anybody, then they should be able to get the conviction of the robbery and not the murder.
Sometimes these situations are complicated depending on the facts and circumstances of the case, so you want to get an attorney with much experience dealing with issues where murders occur, guns are used your loved one is facing life in prison.
I've been doing this now for 30 years. I worked for the district attorney's office early in my career in east LA, where there's a lot of murder and crime; I also worked for a superior court judge in Burbank. In 1994 I decided to become a criminal defense attorney. The second case I tried was murder, so I have much experience. I've been trying them ever since.
I know how to defend these cases. I know how to go up against the best prosecutors and see that justice is done as it relates to you or your family member who might be charged with murder.If you need the best, pick up the phone and ask for a meeting with Ron Hedding. We offer a free case evaluation.