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How Using A Weapon Affects A Criminal Charge

By October 14, 2019 No Comments

The contemporaneous use of a weapon during the commission of an offense is fraught with negative results for the victim and offender. The use of a weapon during a crime is an exacerbating circumstance that ultimately affects how the offense is criminally charged. This blog explores some examples of the way a weapon may affect a criminal charge under California law.

In California, in addition to weapons charges for illegal possession, another category of offenses applies to the unlawful use of a weapon during the commission of another crime. These criminal offenses are often referred to as aggravated offenses. For example, a sexual assault charge is raised to an aggravated sexual assault charge when a weapon is used or displayed during the commission of the sexual assault.

California does not require an actual injury for an offense to rise to an aggravated criminal charge. Merely displaying a weapon to intimidate or frighten a victim is generally sufficient to commit the offense.

Several weapon offenses in California are considered “wobblers” or offenses that may be charged as either a felony or misdemeanor depending on how the State of California interprets the factual circumstances of the offense.

“Assault” under California Penal Code § 240 is defined as an action that may inflict physical harm or unwanted touching on someone else, while California Penal Code § 242 defines “battery” as the actual infliction of force or violence on someone else. Both are misdemeanors, punishable by up to six months in prison. Based on these statutory provisions, an assault may be characterized as an attempted battery and a battery as a completed assault.

However, for crimes where a defendant is alleged to have committed an assault or battery with either a deadly weapon, such as a gun or knife, or other means of force likely to cause great bodily injury, then the charge rises to assault with a deadly weapon under California Penal Code § 245(a)(1). Assault with a deadly weapon is a wobbler offense. Thus, use of a weapon when committing an assault or battery may raise both offenses, normally misdemeanors, to felony charges.

An individual may also be guilty of a “wobbler” if they intentionally inflict serious bodily injury while brandishing a firearm (California Penal Code § 417.6) or brandishing a firearm while resisting arrest (California Penal Code § 417.8).

In determining whether California Penal Code § 417.6 applies to an offense, “serious bodily injury” is defined as a serious impairment of physical condition. In addition to jail time, if a firearm is brandished from a vehicle, the gun and vehicle may be confiscated and subject to forfeiture.

California’s “10-20-life use a gun and you’re done” law, found in California Penal Code § 12022.53, is another form of sentencing enhancement that only applies to 19 enumerated serious or violent felony offenses and to any other felony offense that is “punishable by death or imprisonment in the state prison for life.” Criminal liability under California Penal Code § 12022.53 also applies to any “attempts” to commit any of these serious or violent felonies.

California’s “10-20-life” law mandates a ten-year prison sentence for “using” a gun, a twenty-year prison sentence for firing a gun, and a sentence of 25 years to life for killing or seriously injuring another person with a gun. These penalties are in addition and consecutive to the sentence for the underlying felony conviction.

Using a weapon has serious consequences, John Patrick Dolan’s forty years of experience as a California criminal defense attorney has helped his clients obtain the best resolution possible in a criminal matter. John Patrick Dolan has handled everything from traffic tickets to death penalty murder cases. Mr. Dolan is a recognized California State Bar Certified Specialist in Criminal Law and a seasoned courtroom advocate. Call us today at (760) 775-3739 or find out more online here.

How Using A Weapon Affects A Criminal Charge

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