Fremont, CA asked in Criminal Law for California

Q: If found guilty of a PC 245(b) & PC12022.5(A) can you legally receive time for both, when 245(b) is clearly a element

In a 245(b) Should I be exempt from the penalty of the PC 12022.5(a) considering the gun in the 245(b) is a the element of the crime?

Wouldn't it be basically be viewed as the same charge of crime considering you cant do one without the other

Related Topics:
1 Lawyer Answer
Rhonda Mae Hixon
Rhonda Mae Hixon
  • Criminal Law Lawyer
  • Redding, CA
  • Licensed in California

A: Assault with a semi-automatic firearm (245b), where YOU use the firearm , would necessarily include the use of a firearm, as an element, and should not result in additional punishment, under 12022.5 (a).

There is an exception, in subsection (d) If the firearm is used to shoot from a vehicle at a person outside the vehicle. In that case, the enhancement applies. The court has authority to strike or dismiss the enhancement in the interests of justice, under subsection (c).

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.