Does section 12022 of the California Criminal Code apply to a person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony?

California, United States of America


The following excerpt is from People v. Khankhanian, B242215 (Cal. App. 2014):

"A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense." ( 12022, subd. (b)(1).) Ordinarily, a sentence enhancement must be imposed or stricken "in the furtherance of justice" under section 1385. (People v. Lopez (2004) 119 Cal.App.4th 355.) Because subdivision (b)(1) of section 12022 specifies that the enhancement be consecutive, the trial court had discretion only to impose it consecutively, or strike it. The People cite no authority, and our independent research has found none, that stands for the proposition that the rule applies only to determinate sentences and not to an indeterminate life term. The error cannot be considered harmless and the case must be remanded for proper sentencing on the enhancement only. (People v. Bonnetta (2009) 46 Cal.4th 143, 151-153.)

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