Enhancements to a sentence based on defendant’s particular conduct (as compared to his status) are generally categorized by 1) the type of victim; 2) whether injury or death resulted from the crime; 3) use of a firearm or other dangerous weapons; 4) use of other instrumentalities to cause injury or death; 5) gang enhancements; 6) drug cases; 7) DUI; 8) kidnapping / robbery and or carjacking cases; 9) sex crimes; and 10) property loss / money laundering and fraud.
This article will attempt to give the reader some of the more common sentence enhancements in each of these categories of conduct, nearly all of which are cited in Penal Code § 1170.11.
The type of victim is perhaps the broadest category of sentence enhancements. A sentence can be enhanced due to the victim being a minor, an elder or dependent adult (categorized as older or under age 70), hate crimes, the imposition of great bodily injury, human trafficking, gang cases, kidnapping cases and drug cases.
Three examples of such conduct enhancements are first, under Penal Code § 186.26(d), there is a three-year sentence enhancement for soliciting, recruiting, coercing or threatening a minor to obtain the minor’s active participating in a criminal street gang. Second, under Penal Code § 236.4(b), there is a five, seven or ten-year sentence enhancement for great bodily injury on a victim when defendant commits or attempts to commit human trafficking under Penal Code § 236.1. Third, under Penal Code § 236.4(c), there is a five-year sentence enhancement for a second or greater prior conviction for each prior conviction for human trafficking under Penal Code § 236.1.
Second, a sentence can be lengthened when defendant causes injury or death as a result of the crime. For example, under Penal Code § 12022.7(d), there is a four, five or six-year sentence enhancement if one personally inflicts great bodily injury upon a child under the age of five years old. A very common sentence enhancement is three, four or five years when one personally inflicts great bodily injury in a domestic violence crime (Penal Code § 12022.7(e). Another quite common enhancement under this category is the 25 year to life sentence enhancement under Penal Code § 12022.53(d) for proximately causing great bodily injury or death other than to an accomplice by personal and intentional discharge of a firearm during the commission of certain felonies.
Third, a sentence can be enhanced whenever a firearm is involved. For example, under Penal Code § 12021.5(a), a sentence can be lengthened one, two or three years if defendant was just carrying a firearm while committing certain street gang crimes. If the firearm has a detachable magazine and the firearm is carried while committing certain street gang crimes, the sentence can be enhanced by two, three or four years. If one personally uses an assault weapon or machine gun during the commission of a crime, the sentence eligible for a five, six or ten-year sentence enhancement under Penal Code § 12022.5(b).
Fourth, using other instrumentalities to cause injury of death have their own sentence enhancements. For example, if one intentionally poisons or adulterates food, drink, medicine or a water supply with any substance that may cause death or that causes great bodily injury, there is a three-year sentence enhancement under Penal Code § 347(c)(2). If one administers a controlled substance against the victim’s will, there is also a three-year sentence enhancement under Penal Code § 12022.75(a). Using a destructive device, such as a bomb, or explosive as a special circumstance to murder exposes defendant to a sentence of life in prison without the possibility of parole under Penal Code § 190.2(a)(4) or (a)(6).
Sentence enhancements for gang crimes are often alleged. If one is convicted of committing a violent felony (for a list of violent felonies, see Penal Code § 667.5(c)) for the benefit of a street gang, there is a ten-year sentence enhancement under Penal Code § 186.22(b)(1)(C). If one is convicted, in contrast, of just a felony, but that it was for the benefit of a street gang, there is a 2, 3 or 4-year sentence enhancement under Penal Code § 186.22(b)(1)(A). If one is convicted of committing a serious felony (for a list of violent felonies, see Penal Code § 1192.7(c)) for the benefit of a street gang, there is a five-year sentence enhancement under Penal Code § 186.22(b)(1)(B).
Other similar conduct enhancements apply for cases involving drugs, DUI, kidnapping / robbery and or carjacking cases, sex crimes and property loss crimes / money laundering and fraud. Contact us.