Negligent Discharge of a Firearm
Penal Code 246.3 PC

 Under California Penal Code 246.3 PC, you commit the crime of “negligent discharge of a firearm” if you:

  1. Willfully discharge a firearm,
  2. In a grossly negligent manner,
  3. Which could result in someone's injury or death.1

While it may sound as if the crime of “negligently discharging a firearm” includes accidentally shooting a gun, in fact that is not the case. You are only guilty under Penal Code 246.3 if you willfully—that is, intentionally—pull the trigger.2

Examples

Here are some examples of behavior that could lead to charges of negligently discharging a firearm:

  • After his favorite baseball team wins the World Series, a man fires his gun into the air during a celebration in a park.
  • A 12-year-old boy finds a loaded gun that belongs to his father and decides to engage in some target practice by shooting at toys in a room where his younger sister is playing.
  • A woman is showing off a gun she owns at a crowded party. When a man laughingly suggests that she probably doesn't know how to use it, she shows him that she does by firing a shot at a dart board hung on the wall.

Penalties

Compared to other offenses covered by California gun laws—such as Penal Code 417 PC brandishing a weapon or Penal Code 26100 PC drive-by shootings—negligent discharge of a firearm may seem like a fairly minor matter.

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Negligent discharge of a firearm can lead to felony penalties in California.

But in fact California law imposes harsh penalties for this offense. Negligently firing a gun is what is known as a “wobbler”—which means that it may be charged as either a misdemeanor or a California felony.3

If it is charged as a misdemeanor, PC 246.3 negligent discharge carries a maximum county jail sentence of one (1) year. Charged as a felony, it can lead to sixteen (16) months, two (2) years or three (3) years in county jail.4

Legal defenses

But an experienced gun crimes defense lawyer can help. Depending on the circumstances of the allegations, s/he may be able to help you fight the charges with one or more of the following legal defenses:

  • You acted in self-defense;
  • You believed the gun was unloaded; and/or
  • There was no actual danger of death or injury.

In this article, our California criminal defense attorneys explain the following:

1. Legal Definition of Negligent Discharge of a Firearm

2. Penalties for Negligently Discharging a Firearm

2.1. Sentencing enhancements
2.2. Negligent discharge and California's Three Strikes law
2.3. Immigration consequences of a negligent discharge conviction

3. Legal Defenses to California Penal Code 246.3 Charges

4. PC 246.3 Negligent Discharge and Related Offenses

4.1. Penal Code 246 shooting at an inhabited dwelling or occupied car
4.2. Penal Code 417 brandishing a weapon
4.3. California's “felony-murder” rule
4.4. Penal Code 29800 felon with a firearm

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. Legal Definition of Negligent Discharge of a Firearm

The legal definition of negligently discharging a firearm consists of three (3) “elements of the crime.” These are key facts that the prosecutor must prove in order for you to be guilty of this offense.

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You commit the crime of negligent discharge when you intentionally fire a gun with gross negligence.

The elements of negligent discharge are:

  1. You intentionally shot a firearm or a BB device;
  2. You shot the firearm or device with “gross negligence”; and
  3. The shooting could have resulted in someone's injury or death.5

Let's take a closer look at some of the terms in this legal definition.

Intentionally

One of the key elements of the crime of negligent discharge is that you need to have fired the gun intentionally. If you pulled the trigger by accident, you are not guilty of this offense.6

By extension, this means that you cannot be convicted of negligently discharging a firearm if you genuinely believed the firearm was unloaded. This is because, if you thought it was unloaded, you couldn't have formed the intent to fire it.7

Example: Jerry, a 12-year-old boy, is at his friend Greg's house. The two of them find a gun that belongs to Greg's dad.

Jerry thinks the gun isn't loaded and decides to play with it. He points it at Greg's chest and pulls the trigger. Greg ends up seriously injured.

Jerry is not guilty of negligently firing a gun because he believed the gun was unloaded.8

A “firearm” or a “BB device”

A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion (or other form of combustion).9

The crime of negligent discharge can also apply to BB devices (though, as we will discuss below, the penalties are reduced in that case).10

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.11

Example: Maria, a college student, brings a BB gun to a hockey game. When the team she is rooting against scores a point, she shoots the BB gun toward the floor in frustration.

Even though she is firing only a BB gun, and not a real gun, Maria may be prosecuted under California Penal Code 246.3.

“Gross negligence”

Just being negligent isn't enough for you to be guilty of negligent discharge of a firearm. You need to have behaved with “gross negligence.”12

You act with gross negligence only when both of the following are true:

  1. You act in a reckless way that creates a high risk of death or great bodily injury; AND
  2. A reasonable person would have known that acting in that way would create such a risk.13

In other words, gross negligence has to be something more than ordinary carelessness or mistake in judgment.

Negligentdischarge_gunfiring-optimized
You are only guilty under Penal Code 246.3 if you act with "gross negligence."

A person acts with gross negligence only when s/he acts so differently from the way an ordinarily careful person would act in the same situation that his/her act amounts to disregard for human life, or indifference to the consequences of his/her actions.14

Example: Rodolfo is hanging out in a strip mall parking lot at two in the morning. Despite the hour, the strip mall is seeing a fair amount of foot traffic from people visiting a 7-Eleven, donut store and liquor store located inside it.

Rodolfo fires two shots into the air from a gun.

Rodolfo's behavior was grossly negligent. A reasonable person would have known that firing two shots into the air in a place with that many people around created a high risk of someone being killed or seriously injured.15

Could have resulted in injury or death

Finally, firing a gun only amounts to negligent discharge if the shooting could have resulted in an injury or death.16

Note that this does not mean that it needs to have been likely that the shooting would result in injury or death. As long as it is possible—even if it is highly unlikely—you will be guilty of this offense.

For example, California law considers it negligent discharge if you:

  • Fire into the air; or
  • Fire “warning shots.”17
Negligentdischarge_gunwithammo-optimized
You are only guilty of negligently discharging a firearm if you knew the gun was loaded.

Example: Susan is camping in an isolated campground in a national forest on a weeknight. She is the only person in the campground.

After getting drunk by herself in front of her campfire, Susan takes a hunting rifle she has brought with her to defend against bears and fires it into the air.

A ranger who is patrolling nearby hears the shot and drives to the campsite to see what is going on. He reports Susan to the authorities.

Susan is probably NOT guilty of negligently discharging her firearm. Even though she intentionally fired the gun, the shooting could not have resulted in anyone's injury or death because there was no one else around.

2. Penalties for Negligently Discharging a Firearm

Penal Code 246.3 negligent discharge is what is known as a “wobbler” in California law—meaning that it may be charged as either a misdemeanor or a felony.18

The prosecutor decides whether to charge this offense as a misdemeanor or a felony. S/he will make that decision based on:

  1. The circumstances of the allegations; and
  2. The defendant's criminal history.

The one exception is if negligent discharge is done with a BB device rather than a firearm. In that case, it is always a misdemeanor.19

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A sentence for California negligent discharge will be served in county jail.

The potential penalties for misdemeanor negligent discharge of a firearm are:

The potential penalties for negligently firing a firearm as a felony are:

2.1. Sentencing enhancements

Luckily, several sentencing enhancements that apply to a number of California crimes do not apply if you are convicted under California Penal Code 246.3.

For example, California's sentencing enhancement for personal use of a gun in the commission of a felony does not apply to negligent discharge—because it only applies to offenses that don't necessarily involve use of a gun.22

Also, California's “10-20-life ‘use a gun and you're done'” law only applies to a list of felonies set forth in that law, which does not include negligently discharging a firearm.23

However, defendants charged with negligent discharge often face sentences that include the Penal Code 186.22 PC gang sentencing enhancement.

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The gang sentencing enhancement may increase the total sentence for negligently firing a gun.

Felony negligent discharge of a firearm that is committed for the benefit of, at the direction of, or in association with a criminal street gang—with the specific intent to promote, further or assist in the gang's criminal conduct—can lead to an additional two (2), three (3), or four (4) years in prison.24

2.2. Negligent discharge and California's Three Strikes law

Felony negligent discharge is also considered a “serious felony” under California's “Three Strikes” law.25

So if you have a conviction on your record for PC 246.3 as a felony, and you are subsequently charged with any other California felony, you will face twice the normal sentence for that second offense under California's “Three Strikes” law.26

And, if you accumulate three “strike” convictions—one or more of which may be a felony negligent discharge conviction—then you will receive a sentence of twenty-five (25) years to life in state prison.27

2.3. Immigration consequences of a negligent discharge conviction

A negligent discharge of a firearm conviction can lead to serious immigration consequences for defendants who are not U.S. citizens

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Negligent discharge of a firearm is a deportable offense.

Like most crimes involving firearms, negligently discharging a gun is a so-called “deportable crime.”28 So if you are not a U.S. citizen, and you are convicted of this offense—or plead guilty to it—you can be deported.

According to Van Nuys criminal defense attorney David F. Poblete29:

“For negligent discharge defendants who are not U.S. citizens, deportation can be a far worse penalty than any fine or jail time. And all too many defendants plead guilty to this offense because they think it's a minor thing—not realizing that their whole lives could be upended by that conviction.”

3. Legal Defenses to California Penal Code 246.3 Charges

Anyone—citizen or not—should do their best to find a criminal defense law firm with the experience and credentials to effectively fight negligent discharge of a firearm charges.

In our experience, some of the most helpful legal defenses in these sorts of cases include:

Self-defense

You are not guilty of negligently shooting a firearm if you were acting in self-defense (or defense of someone else).30

Negligentdischarge_2ndamendment-optimized
You are not guilty of negligent discharge if you acted in self-defense.

This defense applies if all of the following are true:

  1. You reasonably believed that you or someone else was in imminent danger of suffering bodily injury or being touched unlawfully;
  2. You reasonably believed that you needed to fire a gun to defend against that danger; and
  3. You used no more force than was reasonably necessary to defend against that danger.31

Example: Pamela, a retired law enforcement officer, is out walking her dog when two large, unleashed dogs approach her. These dogs behave in a threatening manner and seem likely to attack her.

Pamela takes out a loaded pistol she carries with her and fires two warning shots to scare the dogs away. There are other people in the vicinity who could conceivably have been hit by the bullets (but none are).

Pamela can use the defense of self-defense to fight negligent discharge charges. This defense applies when the threat is posed by animals as well as when it is posed by people.32

You believed the gun was unloaded

As we discussed above you are only guilty under California Penal Code 246.3 if you fired a gun intentionally. This means that you need to have known it was loaded.33

Depending on the facts of your case, it may not be easy for prosecutors to prove beyond a reasonable doubt that you knew the firearm was loaded. Maybe it belonged to a friend or a relative—or maybe it had been in storage for so long that you could have forgotten whether it was loaded.

Lawyer_lawoffice-optimized
You are not guilty of negligent discharge if you believed the gun was unloaded.

If this is the case, this could be a promising legal defense to negligent discharge charges.

There was no actual danger of death or injury

You are only guilty of negligently discharging a firearm if there was actually a danger that someone could be killed or injured by the gun.34

This depends on the place and time where the incident took place, and how many people were around—all of which are facts that the prosecutor will need to establish.

With a good gun crimes defense attorney on your side, you can find the holes in the prosecution's story and tell your own version—which the jury may find more convincing.

4. PC 246.3 Negligent Discharge and Related Offenses

If you are charged with negligent discharge, you should be aware of the following related California crimes.

4.1. Penal Code 246 shooting at an inhabited dwelling or occupied car

California Penal Code 246 shooting at an inhabited dwelling or occupied car occurs when someone fires a gun at an:

  • Inhabited house;
  • Occupied building; or
  • Occupied vehicle.35
Negligentdischarge_manwithgun-optimized
Shooting at an inhabited structure or vehicle is a more serious crime than negligent discharge.

PC 246 is a felony. It is punishable by either six (6) months to one (1) year in county jail, or else three (3), five (5) or seven (7) years in state prison.36

Because shooting at an inhabited dwelling or occupied car carries heavier penalties than negligent discharge, it is very common for defendants to try to get PC 246 charges reduced to PC 246.3 negligent discharge charges.

4.2. Penal Code 417 brandishing a weapon

Penal Code 417 brandishing a weapon is the crime of drawing or exhibiting a gun or other weapon, in a rude, angry or threatening manner or during a fight or quarrel.37

When the weapon is a firearm, brandishing a weapon is a misdemeanor and carries a potential county jail sentence of three (3) to six (6) months.38

In some cases, defendants are charged with both negligent discharge and brandishing a weapon. This could occur if, for example, the defendant were involved in an argument with another person, which led him/her to pull out a gun and fire a “warning shot.”

4.3. California's “felony-murder” rule

In most cases, a defendant can only be convicted of murder in California if s/he acted with “malice aforethought.”39 But the California “felony-murder” rule is an exception to that principle.

Gtf_gunandbulletes-optimized
Shooting at an inhabited structure or vehicle is a more serious crime than negligent discharge.

Under the “felony-murder” rule, a defendant can be convicted of murder if s/he accidentally kills someone while committing certain inherently dangerous felonies.40

California courts used to allow defendants to be convicted of murder under the felony-murder rule if they accidentally killed someone while committing felony negligent discharge.41

But in 2009 the California Supreme Court changed course and held that negligent discharge isnot a felony to which the felony-murder rule applies.42

So if a defendant is accused of negligently discharging a firearm and accidentally killing someone in the process, s/he probably can NOT be convicted of murder—even though an aggressive prosecutor or police officer might try to tell him/her otherwise.

4.4. Penal Code 29800 felon with a firearm

If you are accused of negligently discharging a firearm, and you have a prior felony conviction on your record, you could also face charges under California's “felon with a firearm” law, Penal Code 29800 PC.

This law imposes criminal penalties on anyone with a prior felony conviction who knowingly possesses or receives a firearm in California.43 As a California felony, felon with a firearm carries an additional sentence of sixteen (16) months, two (2) years or three (3) years.44

And, of course, if you are convicted of negligent discharge as a felony, California's felon with a firearm law will prevent you from lawfully owning or possessing a firearm after you have served your sentence.

Call us for help…

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For questions about the California crime of negligently discharging a firearm, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on the Nevada crime of discharging a firearm from a structure or vehicle, please see our page on the Nevada crime of discharging a firearm from a structure or vehicle.

In addition, you may also find helpful information in our related articles on The Definition of Criminal Negligence/Gross Negligence in California; California Gun Laws; Penal Code 417 PC Brandishing a Weapon; Penal Code 26100 PC Drive-by Shootings; Legal Definition of a “Wobbler” in California Law; Legal Definition of a Misdemeanor in California Law; Legal Definition of a California Felony; Common Legal Defenses to California Crimes; Self-Defense as a Legal Defense in California; Legal Definition of Great Bodily Injury/Harm; Misdemeanor (Summary) Probation in California; Felony (Formal) Probation in California; California's Realignment Program AB 109; California's Sentencing Enhancement for Personal Use of a Gun in the Commission of a Felony; California's “10-20-Life ‘Use a Gun and You're Done'” Law; The Penal Code 186.22 PC Gang Sentencing Enhancement; Definition of a “Serious Felony” under California's Three Strikes Law; California's Three Strikes Law; Immigration Consequences of a California Criminal Conviction; California Deportable Crimes; California Penal Code 246 Shooting at an Inhabited Dwelling or Occupied Car; Penal Code 187 PC The Crime of Murder in California; The California “Felony-Murder” Rule; and California's “Felon with a Firearm” Law Penal Code 29800 PC.

Legal References:


1 Penal Code 246.3 PC – Discharging firearm or BB device in grossly negligent manner; punishment. (“(a) Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. (b) Except as otherwise authorized by law, any person who willfully discharges a BB device in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year. (c) As used in this section, “BB device” means any instrument that expels a projectile, such as a BB or a pellet, through the force of air pressure, gas pressure, or spring action.”)

2 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 970 – Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3). (“The defendant is charged [in Count ] with shooting a (firearm/BB Device) in a grossly negligent manner [in violation of Penal Code section 246.3]. To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant intentionally shot a (firearm/BB device); 2 The defendant did the shooting with gross negligence; [AND] 3 The shooting could have resulted in the injury or death of a person(;/.) <Give element 4 when instructing on self-defense or defense of another.> [AND 4 The defendant did not act (in self-defense/ [or] in defense of someone else).]”)

3 Penal Code 246.3 PC – Discharging firearm or BB device in grossly negligent manner; punishment, endnote 1, above.

4 Same.

See also Penal Code 1170(h) PC – Determinate sentencing. (“(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense [including felony negligent discharge] shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)

5 CALCRIM 970 – Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3), endnote 2, above.

6 Same.

7 In re Jerry R. (1994) 29 Cal.App.4th 1432, 1441. (“The case does not support the Attorney General's theory that when a statute simply prohibits the “willful” commission of one act, i.e., the [negligent] discharge of a firearm, the intentional act requirement may be satisfied by the willful commission of a different act, i.e., the pulling of the trigger of a gun believed to be unloaded.”)

8 Based on the facts of the same.

9 CALCRIM 970 – Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3). (“[A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.]”)

10 Penal Code 246.3 PC – Discharging firearm or BB device in grossly negligent manner; punishment, endnote 1, above.

11 Same.

12 CALCRIM 970 – Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3), endnote 2, above.

13 CALCRIM 970 – Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3). (“Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: 1 He or she acts in a reckless way that creates a high risk of death or great bodily injury. AND 2 A reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with 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. [Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]”)

14 Same.

15 Based on the facts of People v. Alonzo (1993) 13 Cal.App.4th 535.

16 CALCRIM 970 – Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3), endnote 2, above.

17 See, e.g., People v. Alonzo, endnote 15, above; People v. Lee (2005) 131 Cal.App.4th 1413.

18 Penal Code 246.3 PC – Discharging firearm or BB device in grossly negligent manner; punishment, endnote 1, above.

19 Same.

20 Same.

See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors [including misdemeanor negligently discharging a firearm] or ten thousand dollars ($10,000) in cases of felonies in addition to the imprisonment prescribed.”)

21 Same.

See also Penal Code 1170(h) PC, endnote 4, above.

22 Penal Code 12022 PC – Terms of imprisonment for committing or attempting felony or violation while armed with firearm or using deadly or dangerous weapon; application to principals in commission of offense or attempted offense; judicial discretion. (“(a)(1) Except as provided in subdivisions (c) and (d), a person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment pursuant to subdivision (h) of Section 1170 for one year, unless the arming is an element of that offense [as it is for the crime of negligently discharging a firearm].”)

23 Penal Code 12022.53 PC – Sentence enhancements for persons convicted of enumerated felonies [not including negligent discharge] who use firearm in commission of the crime; limitations.

24 Penal Code 186.22 PC – Participation in criminal street gang; penalty [may enhance the sentence for negligent firing of a gun]. (“(b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: (A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion. . . .”)

25 Penal Code 1192.7 PC – Definition of “serious felony.” (“(c) As used in this section, "serious felony" means any of the following: . . . (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm [this obviously includes felony negligent discharge of a firearm]; . . . .”)

26 Penal Code 667(e)(1) PC – Three strikes law. ("(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has one or more prior serious and/or violent felony conviction [including negligent discharge]: (1) If a defendant has one prior serious and/or violent felony conviction as defined in subdivision (d) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2)(A) Except as provided in subparagraph (C), if a defendant has two or more prior serious and/or violent felony convictions [including negligent discharge] as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious and/or violent felony convictions. (ii) Imprisonment in the state prison for 25 years. (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.”)

27 See same.

28 Immigration & Nationality Act (“INA”) 237, 8 U.S.C. 1227 – Deportable aliens. (“(a) Classes of deportable aliens: Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . . (2) Criminal offenses . . . (C) Certain firearm offenses. Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of Title 18) in violation of any law is deportable.”) Negligent discharge of a firearm counts as “using” a firearm in violation of law.

29 Van Nuys criminal defense attorney David F. Poblete is an energetic young attorney who has devoted his career to defending the civil rights of criminal defendants in all types of cases, including drug and firearm crimes. He is a Filipino-American from a military family who is driven by both a deep sympathy for the “little guy” and a profound respect for the freedoms we are all entitled to in this country. Poblete regularly defends clients accused of theft and other crimes in the Superior Courts of Los Angeles, Orange and San Diego Counties.

30 CALCRIM 970 – Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3), endnote 2, above.

31 CALCRIM 3470 – Right to Self-Defense or Defense of Another (Non-Homicide [applies to California negligent discharge]). ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")

32 Based on the facts of People v. Lee (2005) 131 Cal.App.4th 1413.

33 CALCRIM 970 – Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3), endnote 2, above.

34 Same.

35 Penal Code 246 PC – Shooting at inhabited dwelling house, occupied building, vehicle, or aircraft, or inhabited housecar or camper; punishment [related offense to negligent discharge]. (“Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year. As used in this section, “inhabited” means currently being used for dwelling purposes, whether occupied or not.”)

36 Same.

37 Penal Code 417 PC – Drawing, exhibiting, or using firearm or deadly weapon; self defense; peace officers [related offense to Penal Code 246.3 negligent discharge]. (“(a)(1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days. (2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows: (A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. (B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.”)

38 Same.

39 Penal Code 187 PC – Murder defined. (“(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”)

40 People v. James (1998) 62 Cal.App.4th 244, 257-58. ("The felony-murder rule artificially imposes malice as to one crime because of defendant's commission of another and thereby satisfies the standard of culpability necessary to raise a homicide to murder. The felony-murder rule applies to both first and second degree murder. Under the first degree felony-murder rule, a homicide is first degree murder if it is committed in the perpetration or attempted perpetration of statutorily specified felonies (including arson, robbery and rape). Under the second degree felony-murder rule, a homicide is second degree murder if it is committed in the perpetration or attempted perpetration of any felony that is inherently dangerous to human life [which may include negligent discharge].")

41 People v. Robertson (2004) 34 Cal.4th 156, 169. (“The court reasoned that the offense is inherently dangerous because it involves discharge of the highly lethal instrumentality of a firearm with gross negligence in a manner that “could result in injury or death to a person” (§ 246.3). It added that “‘[i]mminent deadly consequences [are] inherent in the act' [citation] even if the bullet fortuitously falls so as to injure and not kill.” (People v. Clem, supra, 78 Cal.App.4th at p. 353, 92 Cal.Rptr.2d 727.) By its terms, the statute “presupposes that there are people in harm's way” ( id. at p. 351, 92 Cal.Rptr.2d 727) and that a reasonable person in defendant's situation would have “reasonable grounds to suspect that people will be endangered.” (Id. at p. 352, 92 Cal.Rptr.2d 727.) The court concluded that “a killer who violates section 246.3 [negligently discharging a firearm] ‘is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it.'””)

42 People v. Sarun Chen (2009) 45 Cal.4th 1172, 1200. (“To avoid the anomaly of putting a person who merely intends to frighten the victim in a worse legal position than the person who actually intended to shoot at the victim, and the difficult question of whether and how the jury should decide questions of merger, we need to reconsider our holdings in Robertson, supra, 34 Cal.4th 156, 17 Cal.Rptr.3d 604, 95 P.3d 872, and Randle, supra, 35 Cal.4th 987, 28 Cal.Rptr.3d 725, 111 P.3d 987. When the underlying felony is assaultive in nature, such as a violation of section 246 or 246.3 [negligent discharge], we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction. An “assaultive” felony is one that involves a threat of immediate violent injury.”)

43 Penal Code 29800 PC – Felon with a firearm [may be charged along with negligent discharge]. (“(a)(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.”)

44 Penal Code 18 PC – Punishment for felony not otherwise prescribed; alternate sentence to county jail. (“(a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony [including felon with a firearm] is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.”)

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