THE LAW UNDER PENAL CODE SECTION 246.3
California Penal Code 246.3 PC defines the “negligent discharge of a firearm” as
- Willfully discharging a firearm,
- In a grossly negligent manner,
- which could result in someone's injury or death.
Accidentally shooting a gun is not subject to Penal Code 246.3. You must intentionally pull the trigger in order to be guilty of negligent discharge of a firearm.
The following are examples of negligent discharge of a firearm:
- At his prom party, Jack grabs his father’s handgun and fires it into the air as an expression of excitement and celebration.
- Joe shoots at a crowd in order to quiet it down.
- Jack and Joe go hunting together. Joe teases Jack that he is not man enough to shoot the gun in the vicinity of other pedestrians. Taking Joe’s bait, Jack shoots the gun at the direction of the pedestrians.
WHAT MUST THE PROSECUTOR PROVE
In order to prove you guilty of negligent discharge of a firearm under Penal Code Section 246.3, the prosecutor must prove beyond a reasonable doubt the following:
- You intentionally shot a firearm or a BB device;
- You shot the firearm or device with “gross negligence”; and
- The shooting could have resulted in someone's injury or death.
Let’s examine more closely some of the above elements.
You intentionally shot a firearm
You intentionally shoot a firearm when you intend to pull the trigger and knew that the firearm was loaded. Therefore, if you accidentally pulled the trigger or believed that the firearm was not loaded, you cannot be found guilty of negligent discharge of a firearm under Code section 246.3. For example, Jack and Jill come across a handgun in Jack’s father’s office. Jack tells Jill that the handgun is a toy gun. Believing this to be true, Jill grabs the handgun from Jack, pulls it toward the window, and pulls the trigger. Jill is not guilty of negligent discharge of a firearm because she did not believe that the gun was loaded.
Now imagine if Jack told Jill that the gun was real but that it was not loaded. Jill believed this to be true. In this scenario too Jill is not guilty of negligent discharge of a firearm because she did not believe that the gun was loaded.
A “firearm” or a “BB device”
Any device used as a weapon, from which a projective is discharged or expelled, is a firearm. A “BB device” means any instrument that expels a projectile, such as a BB or pellet, through the force of air pressure, gas pressure, or spring action. Negligent discharge of a BB device carries a lesser sentence than negligent discharge of a firearm.
In the example above, imagine that Jack told Jill that the gun in his father’s office was a functioning and loaded BB gun. Jill grabs the gun and pulls the trigger. Jill is guilty of negligent discharge of a firearm even though the firearm involved was only a BB gun.
You shot the firearm with “gross negligence”
Gross negligence is ont accident or carelessness. It means:
- Acting in a way that poses a high risk of death or great bodily injury; AND
- A reasonable person would have known that acting in that way would pose this type of risk.
Under California Penal Code 246.3, a person shows gross negligence “when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.”
For example, at a loud neighborhood gathering, Joe gets furious with the chaos in the room. He pulls out a loaded gun from his waistband and fires it at crowd to quiet down it down. Joe acted with gross negligence because a reasonable person would have known that firing a firearm into a crowd poses a high risk of death or great bodily injury to members of that crowd.
“Could have resulted in injury or death”
The firing of a gun constitutes negligent discharge if and only if the shooting could have caused injury or death. Note that the prosecutor need not show that the shooting likely could have caused death. All that the prosecutor must prove is that injury or death was a possible and foreseeable result of the shooting.
For example, at his prom party, Jack shoots a firearm into the air. Nobody was injured by this action, and it was not likely that anybody would have been injured because Jack did not shoot the gun in the specific direction of the crowd. However, it was foreseeable and possible that the shooting would result in injury or death to at least one person in the crowd. In this scenario, Jack is guilty of negligent discharge of a firearm.
Now imagine that Jack goes hunting in a desolate area. He shoots his gun into the air. Jill, a stranger, hears the gun from about 50 feet away. Jill calls the police. In this scenario, Jack is not guilty of negligent discharge of a firearm. Even though he intentionally discharged the firearm, the shooting could not have injured anybody because nobody was in Jack’s vicinity.
PENALTIES FOR NEGLIGENT DISCHARGE OF A FIREARM UNDER PENAL CODE SECTION 246.3
Penal Code 246.3 negligent discharge is a “wobbler”—this means it may be charged as a misdemeanor or as a felony based on the specific circumstances of the offense and the defendant’s criminal history.
Negligent discharge of a BB device is always a misdemeanor. If convicted of a misdemeanor negligent discharge of a firearm, you are subject to misdemeanor or informal probation, a maximum of one year in county jail, and a fine of up to $1,000.00.
If convicted of a felony negligent discharge of a firearm, you face formal or felony probation, 16 months, 2 years, or 3 years in county jail under California’s realignment program, and a maximum fine of $10,000.
SENTENCING ENHANCEMENTS FOR NELIGENT DISCHARGE OF A FIREARM UNDER PENAL CODE SECTION 243.6
If you discharge a firearm in association with a known gang, at the direction of the gang, or for the benefit of the gang, and if you did so with the specific intent of advancing the gang’s goals or assisting the gang in any way, then you face an additional 2, 3, or 4 years in state prison.
The Three Strikes Enhancement
Felony negligent discharge is classified as a “serious felony” under California's “Three Strikes” law. This means if a conviction for PC 246.3 as a felony is later followed by a charge for any other California felony, the punishment for the second offense is twice the normal sentence under the “Three Strikes” law. A third felony conviction will result in a sentence of twenty-five (25) years to life in state prison.
Immigration consequences of a conviction of PC 246.3 negligent discharge of a firearm.
Negligent discharge of a firearm can lead to severe consequences for non-citizens because it is considered a deportable crime. That means that, if you are a non-citizen and you are convicted of this charge, you may be deported or may be subject to inadmissibility grounds.
DEFENSES TO NEGLIGENT DISCHARGE OF A FIREARM UNDER PENAL CODE SECTION 243.6
You Acted in Self-defense
You may claim self-defense (or defense of someone else) IF:
- You reasonably believed that you were in imminent danger of great bodily harm; and
- You used force that was reasonably necessary to deflect that harm
If you discharged a firearm in the above two circumstances, you cannot be found guilty of negligent discharge of a firearm. For example, Jill senses that an intruder is roaming in her house. She takes out her gun and shoots it in the air to scare off the intruder. Deterred, the intruder leaves Jill’s residence. Jill reasonably believed that the intruder posed a risk of imminent physical harm to her. By discharging her firearm, she used no more force than was reasonably necessary to drive the intruder out of her residence. Because Jill used the firearm in self-defense, she is not guilty of negligent discharge of a firearm under Penal Code section 243.6.
You Believed that the Gun was Not loaded
A conviction under California Penal Code 246.3 requires firing a gun intentionally. In order for the prosecution to prove you guilty, you must have known that the gun was loaded.
For example, during a heated argument with his wife, Jack breaks into his brother’s safety box and retrieves a handgun that had been stored in the safety box for ten years. Jack had no intention of shooting his wife with the gun. He also believed that the gun was not loaded, given that it had been in storage for so many years. Jack brandishes the gun at this wife, and pulls the trigger to fire a warning shot, with the sole intention of intimidating her. Unbeknownst to Jack, the gun was loaded. In this scenario, Jack is not guilty of negligent discharge of a firearm because he did not believe that the gun was loaded. He is, however, guilty of brandishing a weapon (discussed more below).
The discharge of the firearm posed no actual danger, death, or injury
The prosecutor must prove that your discharge of a firearm posed an actual danger—however remote—to someone. If no individuals could have been reasonably and foreseeable hurt by your discharge of a firearm, then you cannot be found guilty of negligent discharge of a firearm under Penal Code section 243.6.
For example, Jack, a gun connoisseur and a hunger, takes one of his firearms to the rooftop of his house. He then practices firing shots in the air. The rooftop was entirely empty and there was nobody in Jack’s vicinity. Jack is not guilty of negligent discharge of a firearm because the discharge of his firearm posed no actual and foreseeable danger to anybody.
RELATED OFFENES TO NEGLIGENT DISCHARGE OF A FIREARM
Shooting at an inhabited dwelling under Penal Code Section 246
You violate Penal Code section 246 when you intentionally shoot at an inhabited house, occupied vehicle, or occupied building. This offense is more serious than negligent discharge of a firearm and is punishable by either 6 months or 1 year in jail or 3, 5, or 7 years in State Prison. The severity of punishment for a conviction under section 246 depends on the specific circumstances of the crime and the defendant’s criminal history.
Because a conviction under Penal Code section 246 carries steeper penalties, defense attorneys often attempt to get a PC 246 charge reduced to negligent discharge of a firearm under Penal Code section 243.6.
Brandishing a weapon under Penal Code section 417
You violate Penal Code section 417 when you display or exhibit a gun or other weapon in a manner that is threatening or angry. Sometimes, brandishing a weapon is charged alongside with negligent discharge of a firearm. For example, Jack and Jill get into an argument. Jack pulls out a loaded gun, brandishes at Jill to intimidate her, and then fires a warning shot. In this scenario, Jack both brandished a weapon and negligently discharged a firearm.
Felon in Possession of a Firearm under Penal Code section 29800.
If you are a convicted felon, the law prohibits you from knowingly owning or possessing a firearm. If you violate this law under Penal Code section 29800, you are subject to 16 months, 2 years, or 3 years of State prison.
HOW THE LOS ANGELES CRIMINAL ATTORNEY CAN HELP YOU
Like many other criminal offenses, negligent discharge of a firearm is fact specific. The circumstances under which the firearm was discharged, the exact location where the firearm was discharged, the precise manner in which the firearm was discharged, and the exact intention behind the discharge are all crucial and relevant information to a rigorous and successful defense against an alleged violation of Code section 243.6. For that reason, Negin Yamini will thoroughly examine the facts of your case and launch and rigorously litigate any and all defenses that pertain to the particular circumstances of your case.