In doing some research at work, I ran across
California’s law against assault with a firearm (Cal. Pen. Code §
245(a)(2)). California’s assault statute
(Cal. Pen. Code § 245) penalizes assault with a deadly weapon, assault with an
amount of force likely to cause great bodily injury, and assault with a firearm
equally: calling for a sentence of two, three, or four years imprisonment for
each of these crimes. This seems
interesting, considering that these crimes all seem to be of varying degrees of
dangerousness, with firearms seeming most likely to cause death, followed by
deadly weapons such as knives, batteries, bicycle footrests, and dogs, (See In re David V., 223 P.3d 603, 607 (Cal.
2010) (mentioning that batteries and bicycle footrests may be deadly weapons) and People v. Nealis, 283 Cal. Rptr. 376, 379 (Cal. Super. 1991) (a dog
may be a deadly weapon)), followed by fists that might be found to carry the
potential for great bodily injury (See
People v. Aguilar, 945 P.2d 1204, 1206-1207
(Cal. 1997)). Because the potential for
death is probably higher when the weapon employed is a firearm, it might make
sense to attach a higher sentence to the crime of assault with a firearm.
The California Legislature has done this, albeit
in a strange, roundabout way. Rather
than simply increasing the sentence for the § 245(a)(2) crime of assault with a
firearm, the legislature enacted Penal Code section 12022.5, which enhances the
sentence for any crime that involves the personal use of a firearm. In People
v. Ledesma, 939 P.2d 1310 (1997), the California Supreme Court recognized
that this enhancement serves the purpose of heightening sentences for the
apparently more severe crime of assault with a firearm. The Court took this analysis so far that it
concluded that the enhancement was mandatory in any 245(a)(2) case involving
personal use of a firearm, despite the fact that §12022.5(d) stated that the
enhancement may apply to §245 (an interpretation that Justice Mosk
criticized in his dissent). The language
of §12022.5(d) now reads that the enhancement “shall” imply, making the Ledesma court’s interpretation less
controversial today.
All of this has led to an interesting state of
the law where a defendant’s punishment for the crime of assault with a firearm will
often be less severe than the punishment for using a weapon in the commission
of the crime. The middle-term sentence
for assault with a firearm is three years, while the middle-term sentence for
the §12022.5 enhancement is four years.
Remember also that this enhancement is for personally using a firearm
while assaulting somebody with a firearm.
The courts note that the enhancement will not
always follow from the conviction. While
this is logically true, practically a failure to find for the enhancement is
likely the very infrequent exception to the rule.
As far as California law goes, Penal Code
section 654 typically bars multiple punishments for the same act. This section is a non-issue in the case of firearm
enhancements on assault with a firearm convictions, both because the
enhancement statute explicitly and mandatorily applies itself to the assault
convictions and because the enhancement’s more recent enactment and revisions
take precedence in the interpretation of the conflicting statutes.
While this post may be stating the obvious for some,
these laws are an interesting illustration of the piecemeal approach that
legislatures take toward achieving their goals.
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