Negligent Discharge of a Firearm

Being safe and responsible with firearms has become more important as gun violence becomes prevalent in mainstream news. It’s no surprise negligence with firearms is taken seriously by law enforcement. Are you facing charges for negligence with firearms? This stain on your criminal record will have long-term, negative effects on your future, in some cases, possibly impacting your gun rights.

Let’s have a look at how California ultimately defines this law to gain a better understanding of what it entails.

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How does California define the negligent discharge of a firearm?

Negligent discharge of a firearm is outlined under California Penal Code 246.3. It states it is a crime for a person to willfully discharge a firearm in a grossly negligent manner andshooting it could have resulted in great bodily injury or the death of another individual.

  • Willfully and intentionally discharges a firearm,
    • A firearm is a weapon that is capable of discharging projectiles;
    • i.e. handguns, pistols, rifles, BB guns, or BB rifles.
  • With gross negligence,
    • Also referred to as criminal negligence, this behavior goes beyond just simple negligent behavior.
    • Acting with gross negligence takes place when you act so recklessly, you create a high risk of great bodily injury or death, and
    • Any reasonable person would not have acted in such a way considering the high risk.
  • The action could have resulted in another person’s injury or death.
    • You can still be guilty of this crime even when no one was hurt, injured, or died as a result of your criminal negligence.

Closely Related Offenses

California Penal Code 273(a), child endangerment;

This crime is committed when you intentionally and willfully expose a child to danger, or possible pain and/or suffering.

California Penal Code 246, shooting into an inhabited dwelling or at an occupied automobile;

You commit this crime when you discharge a firearm into an inhabited home/dwelling, occupied building, and/or occupied motor vehicle.

California Penal Code 417, brandishing a weapon;

It is unlawful to draw or exhibit a firearm in a rude, angry, or threatening manner or to brandish this weapon during a fight or altercation.

California Penal Code 29800, a felon with a firearm;

It is illegal for someone with a felony conviction or outstanding warrant to acquire, control, own, possess or receive a firearm.

California Penal Code 186.22(a) & 186.22(b), street gang enhancement laws;

This law is enforced when someone commits the crime of either (a), participating in a street gang and assisting in felonious conduct by the gang members; OR (b), committing a felony for the benefit of the gang.

What Must The Prosecution Do

For the prosecution to get a conviction for negligently discharging a firearm, PC 246.3, they must first prove the key facts of the case. These facts are also referred to as elements of the crime, which are as follows:

Elements of the Crime

  • The defendant willfully and intentionally shot a BB gun or a firearm,
    • They purposely discharged a loaded weapon.
    • Shooting bullets into the air, firing warning shots, or aiming away from people are all considered a negligent discharge.
    • Essentially, you do not have to aim at anyone or anything to still be guilty of PC 246.3.
  • The device in question was shot using gross negligence, and
    • They acted with a total disregard of other people’s lives, and
    • They acted indifferent to any consequences.
  • Shooting the weapon might have resulted in the injury or death of another person.
    • Even if no one was hurt, the possibilityof suffering is enough to be charged.

California’s Wobbler Cases and Three Strikes Law

Negligent discharge of a firearm is also considered a wobbler in California. This means it’s up to the prosecutor on whether the case can be charged as either a misdemeanor or a felony. The determining factors would be based on the details of the case and the defendant’s criminal background history.

On top of that, the state also has a Three Strikes Law. Under this law, a felony conviction could lead to a strike on one’s criminal record. This means any subsequent felony conviction would result in the normal sentencing being doubled. When a third felony conviction is made, the defendant could face a state prison sentence of 25-years to life.

Knowing this, it’s important to mention, in negligent discharge cases where the weapon used was a BB device, it will most often end in a misdemeanor charge.

Who Can Be Charged

The following situations illustrate who can be charged with PC 246.3, negligent discharge of a firearm. Also, other criminal offenses can be filed in addition to PC 246.3 depending on the specific elements of the case. Facing more than one criminal allegation could result in increased fines, jail sentences, and/or prison time.

Example 1

Gilbert and Shawn were celebrating the 4th of July around a firepit in their backyard. As the fireworks were heard in the distance and neighbors could be heard shouting their excitement, Gilbert pulled out his handgun and shot a couple of bullets into the air.

Gilbert can be charged with negligent discharge of a firearm under PC 246.3. He willingly shot his gun into the air with his friend sitting just feet away from him as well as neighbors in the surrounding area. He did so without regard for their safety and could have caused someone serious injury or death.

Example 2

Jan, who is 13 years old, was playing with her younger sister, Meg, in the basement. They found their dad’s rifle and decided to use it to shoot their old toys. It was not loaded, but they knew where the bullets were and loaded it. Jan successfully shot her old stuffed animals. When Meg attempted to shoot the rifle, the force was too much for her to handle. She missed her target and ended up hitting a waterline near the ceiling.

Both girls could be charged with negligent discharge of a firearm. Although no one was hurt, the potential danger they placed each other in or neighbors in the surrounding area was too high a risk to take. They knowingly chose this risky behavior, having found an unloaded weapon and then loading it. It would be considered gross negligence and what a reasonable person their age would not have done under the same circumstances.

Example 3

Bobby who is 12 years old was riding bikes around the neighborhood with his friends, Julio, and Paulie. They had received BB guns for Christmas and were warned not to use them dangerously. The kids wanted to use them outside, as they were riding on their bikes. Each of them began shooting at different objects. They would shoot the BB’s at Billboards, street signs, and trees.

A pedestrian walking their dog heard the boys and reported them to the police. All three of them could be charged with negligent discharge of a weapon, in this case, a BB gun.

Example 4

Trina left her handgun in her purse. While grocery shopping, she sat her purse beside her 3-year-old son in the shopping cart. He was able to take the gun out of her purse and play with it. He ended up shooting it twice, hitting Trina in the leg and another shopper in the arm before Trina managed to take it away.

His mother, Trina would be held accountable for the injuries and suffering caused by the accidental shooting. She would not be guilty of PC 246.3, negligent discharge of a firearm, however, she would face child endangerment charges under PC 273(a). She left a dangerous weapon within reach of her toddler. Her negligent decision placed him, herself, and anyone else around them in danger of getting injured or possibly killed.

Effective Legal Defense

No matter the circumstances, finding an experienced criminal defense lawyer to fight negligent discharge of a firearmaccusations is highly-recommended. An effective gun crimes defense attorney will be familiar with the common defenses that have been used against charges for PC 246.3.

Here are just a few examples of legal defenses that have been used to successfully fight charges for negligent discharge of a firearm.

Was the firearm even loaded?

Willfully discharging a loaded firearm is one of the elements required for someone to be guilty of PC 246.3. If you knew the gun was loaded and still intended on shooting it, that would mean you intentionally and willfully discharged a dangerous weapon. However, if you honestly believed the weapon was not loaded, then you did not knowingly intend to negligently discharge a loadedfirearm.

For instance: Micheal was showing off his new handgun to his buddies and wanted to pull the trigger. He thought the gun was not loaded and aimed it toward his fish tank. The tank exploded, sending glass fragments everywhere. Everyone ended up getting cuts and scratches from the incident.

Micheal thought his new gun was empty and had no bullets. He truly believed it was not loaded when he aimed at his fish tank. He also had no intention of placing anyone in danger of getting injured. He would not be guilty of PC 246.3, negligent discharge of a firearm.

Were other people present? Was their danger of great bodily injury or death?

To be guilty of negligent discharge of a firearm, you would have had to fire a weapon that could have resulted in possible great bodily injury or death of another person. If you discharged a weapon and no one was in any danger of getting hurt, you should not be guilty of PC 246.3.

For instance:Jan was drinking beer on an empty beach, watching the waves crash and recede. After consuming more beer, she decided to shoot her gun into the Ocean. A lifeguard overheard the gunshots in the distance and reported it.

Although Jan was shooting her gun at a public beach, there were no other people around her. She would not be guilty of PC 246.3, negligent discharge of a firearm because there was no potential for injury and/or death of any other person.

Did you act in self-defense?

In situations where a person was acting in self-defense or the defense of another person means they should not be guilty of negligent discharge of a firearm. The criteria needed for this defense to apply would be:

The defendant had a reasonable belief that they, another person, or people were in imminent danger of being unlawfully touched, attacked, or about to suffer a great bodily injury;

The defendant reasonably believed a firearm was required to aid them against this imminent danger; and

The defendant only used a reasonable amount of force that was necessary to defend themselves or other people from that danger.

For instance: Jose was camping with his family at a full campground. One of the campsites had left a cooler outside of their RV. It attracted a couple of bears, which were roaming the area for more food. After hearing some screams, Jose grabbed his gun and shot the ground near the bears. It was enough to scare both bears away.

Jose did discharge his gun in an area where there were many people. However, he knew proper gun safety and was trained to aim accurately. He only shot the weapon to scare away the bears, in order to protect his family and the surrounding campers from potential bear attacks.

Acting in self-defense to protect yourself or others from wildlife means you were not acting with gross negligence. The same could be said if the possible attackers were people instead of animals. Discharging a weapon for self-protection or to defend others against another person would be an applicable legal defense.

Penalties for PC 246.3

Retaining a top-notch legal defense attorney could mean the difference between the best possible outcome or receiving maximum penalties. A knowledgeable criminal defense lawyer understands the severity of a conviction for negligent discharge of a firearm. They will know what route should be taken, based on the details of the case, to produce more desirable end-results.

If convicted of negligent discharge of a firearm, you face:

Misdemeanor;

Summary (misdemeanor) probation,

Up to one year in county jail, and/or

Up to one thousand dollars in fines.

Felony;

Formal (felony) probation,

16 months, 2, or 3-years in county jail, and/or

As much as ten thousand dollars in fines.

Enhanced Penalties

If the negligent discharge of a firearm was committed in connection to a street gang, you could face sentencing enhancements. A conviction under these circumstances could lead to an additional 2 to 5-years in prison. The sentencing would be in addition to the original crime committed and would be served consecutively.

The immigration consequences include deportation if convicted of negligent discharge of a firearm. Regardless of whether they are misdemeanor or felony charges, a conviction for either/or will negatively impact someone’s immigration status.

If the defendant had a previous felony conviction, they could face sentencing enhancements under California’s Three Strikes Law. This means, their punishment would be twice the normal penalties.

Gun Rights

If convicted of negligent discharge of a firearm as a felony, you cannot legally possess, acquire, or receive a firearm. At least not without consequences. California’s felon with a firearm law outlines the possible penalties for possessing a firearm with a felony on your criminal record. Those punishments are mentioned below.

Penalties for Closely Related Offenses

California Penal Code 273(a), child endangerment;

Misdemeanor;

Up to one year in county jail, and/or

Fines of up to one thousand dollars.

Felony;

2, 4, or 6 years in state prison, and/or

Fines of up to ten thousand dollars.

California Penal Code 246, shooting into an inhabited dwelling or at an occupied car;

Felony;

Formal probation,

6 months or 1 year in county jail, OR

3, 5, or 7 years in state prison, and/or

As much as ten thousand dollars in fines.

California Penal Code 417, brandishing a weapon;

Misdemeanor;

3 months, 6 months, or

Up to one year in the county jail.

California Penal Code 29800, a felon with a firearm;

Felony;

16 months, 2 or 3 years in county jail, and/or

Up to ten thousand dollars in fines.

California Penal Code 186.22(a) & 186.22(b), street gang enhancement;

PC 186.22(a), participation in a street gang:

Misdemeanor;

Up to one year in county jail, and/or

Fines of up to one thousand dollars.

Felony;

16 months, 2 or 3 years in state prison, and/or

Fines of up to ten thousand dollars.

PC186.22(b), committing a felony to benefit a street gang;

Felony;

An additional and consecutive sentence of

2, 3, 4, or 5 years in state prison.

Full sentencing enhancements are also determined by the underlying felony penalties.

Who Can Help

Are you located in the greater San Diego area, Orange County, or Los Angeles and are facing charges for PC 246.3 or any of the similar offenses? One of your priorities should be to take back control of your life by contacting an expert criminal defense lawyer.

Consider the Law Offices of Anna R. Yum which offers award-winning, professional legal counsel. As a former prosecutor, now highly sought after criminal defense lawyer, Attorney Yum understands the full spectrum of life-changing convictions.

If you would like more information on the offenses reviewed above or would like a free no-obligation legal consultation, call our offices at 619-233-4433 or use our online correspondence form. Do not hesitate to contact us as soon as you are accused of any of the aforementioned offenses.

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