California Crimes, Enhancements, and Other Strange Things

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.