Next Time, Use A Knife

I recently tried a case in which a defendant really screwed himself over by using a gun. He broke up with his girlfriend and confronted her when she brought another man to pick up her stuff from his house. The boyfriend shot several times at the man, causing him serious injury. Because he used a gun in his fit of rage, instead of using a knife, he is now facing life in prison. By contrast, if he had used a knife, his sentence would have been increased by four years: one for the knife and three for the injury. Four years versus life is a big difference.

California has a “use a gun and you’re done” law: Penal Code § 12022.53. If you use a gun during a serious felony, your sentence is extended by an additional 10 years. If you fire the gun, your sentence is extended by an additional 20 years. And if you cause great bodily injury to a person as a result of firing a gun, then your sentence is extended by 25 years to life. These extensions are in addition to your punishment to the crime itself. In fact, the punishment you face for using a gun often far exceeds the punishment for the underlying crime.

Penal Code § 12022.53 was enacted in 1997 to substantially increase the penalties for using a firearm in the commission of certain felonies. The Legislature found “that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and deter violent crime.” The Los Angeles Times described the bill as “supported by virtually everyone outside the far left.” The author said, “With the 10–20–life provisions of [Penal Code § 12022.53], we are sending another clear message: If you use a gun to commit a crime, you’re going to jail, and you’re staying there.”

The judge may not strike this enhancement. In other words, even if the judge feels that the additional punishment is unjust, he cannot stop the additional time from being imposed. Moreover a judge cannot avoid the additional punishment by simply granting probation, as he can in other cases. Finally, the enhancement prevents defendants from receiving the same amount of jail credits that others may get: sentence credits are limited to 15% of the total term.

The limitations on the judge may not bind the prosecution, however. Penal Code § 1009 allows the prosecution to amend the information “at any stage of the proceedings.” If there is no prejudice, an amendment of the information for defect or insufficiency may be granted up to and including the close of the trial. (People v. Goolsby (2015) 62 Cal.4th 360, 367-368 [amendment upon submission of the case to the jury].) Indeed, courts have even allowed amendment after a jury verdict but before sentencing. (See People v. Valladoli (1996) 13 Cal.4th 590 [amendment to correct clerical error by adding prior convictions].) Of course, the prosecution could amend the complaint at any point during proceedings. They also have the discretion not to charge the enhancement in the first place. Enhancements like this one underline an important point: the prosecution often has more discretion to show mercy to defendants than a judge.

Some may agree with this law, and some may not. As the Roman playwright Terence says in his “The Self-Tormentor”:

Ius summum saepe summa est malitia.

Extreme law is often extreme injustice.

(Act IV, Scene 5, Line 48.)

I find the title of the play appropriate, since we are all responsible for ourselves, andthose who violate the law open themselves up to this extreme punishment. Whether a defendant actually deserves a break is another question. The Legislature, which speaks for the people, clearly intended to throw the book at gun-toting criminals. Prosecutors are part of the executive branch, and should carry out the legislature’s intent. I think that if more people knew about this law, they would be less likely to use a gun in the first place. Maybe the most “merciful” thing for both victim and defendants is to get the word out, and prevent the crime in the first place.

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