Penal Code 246.3 PC, California's "negligently discharging a firearm" law, prohibits willfully firing a gun or BB device in a grossly negligent manner that could result in death or injury to a person".1
Enacted in 1988, the law's purpose was to deter people from shooting their guns into the air on holidays and other festive occasions.
The offense may be charged as a misdemeanor or a felony, and a conviction subjects you to serious penalties, including possible jail time.
Below, our California criminal defense attorneys2 address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California Firearm Laws; Penal Code 29800 PC California's "Felon with a Firearm" Law; Penal Code 25850 PC Carrying a Loaded Firearm in Public; Penal Code 417 Brandishing a Weapon; Penal Code 246 PC Shooting at an Inhabited Dwelling or Occupied Car; Legal Defenses; California's Self-Defense Laws; Restoring Your California Gun Rights; California's Sentencing Enhancement for Personally Using a Firearm; California's "10-20-life" Law; Penal Code 186.22 PC California's Street Gang Criminal Enhancement; and California's Three Strikes Law.
Penal Code 246.3 PC is considered a "lesser" offense to Penal Code 246 PC California's "shooting at an inhabited dwelling or occupied car" law. The difference between the two is that Penal Code 246 involves an actual target...Penal Code 246.3 PC does not.3
In order to convict you of negligently discharging a firearm or BB device, the prosecutor must prove the following three facts (otherwise known as "elements" of the crime):
- that you willfully fired a gun or BB device,
- that you did so in a grossly negligent manner, and
- that the discharge of the gun could have resulted in a person's death or injury.4
Let's take a closer look at some of these terms to gain a better understanding of their legal definitions.
You act willfully when you commit an act willingly or on purpose. It doesn't matter if you don't intent to break the law as long as the act is intentional.5
A "firearm" is "any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion."6
A BB device is "any instrument that expels a projectile, such as a BB or a pellet, through the force of air pressure, gas pressure, or spring action."7
Grossly negligent manner
When you act in a grossly negligent manner it means that you act in a reckless way that
- creates a high risk of death or great bodily injury,
- demonstrates a disregard for human life or an indifference to the consequences, and
- is such that a "reasonable" person would have recognized the nature of the risk.8
Example: The California Court of Appeals held that the defendant acted in a grossly negligent manner when he fired two gunshots into the air in a commercial area where people were present.9
Could have resulted in injury or death
It's not enough that you willfully discharge a firearm in a grossly negligent manner. Before the prosecutor can convict you of this offense, he/she must prove all three elements. This means that even if you willfully fire a gun in a reckless or careless manner, you are only guilty under Penal Code 246.3 if the act could have resulted in injury or death.
Therefore, willfully firing a gun in an isolated area where there is no reasonably foreseeable threat to human life does not violate this California gun law.10
Fortunately, there are a variety of legal defenses that your California criminal defense lawyer can present on your behalf. Some of these include (but are not limited to):
Self-defense / defense of others
California's self-defense laws excuse your otherwise criminal conduct when you reasonably act to protect yourself or another person from suffering imminent bodily harm.11
This means that even if you negligently discharge your firearm...but only do so because
- you reasonably fear that you or someone else is about to suffer imminent bodily harm, and
- firing your gun is a reasonable way to prevent that harm...
you should be acquitted of any criminal liability under Penal Code 246.3 PC.12
Example: The court held that the defendant was entitled to jury instructions on self-defense when she fired warning shots to protect herself from two unleashed, stray dogs.13
You believed the gun was unloaded
If you didn't intend to fire your gun, then you didn't "willfully" discharge it. This means that if, for example, you honestly and reasonably believe that your gun is unloaded when you pull the trigger, you aren't guilty of negligently discharging a firearm.14
There was no risk of injury or death
Referring back to an earlier point, if you discharge your firearm in an isolated area where there is no risk of injury or death, your act doesn't rise to the level of gross negligence. However, there are two points to address on this issue.
- The courts are undecided as to whether Penal Code 246.3 punishes conduct that could result in your own personal injury or death.15
- If your gunshot is such that it might "provoke" other people in the area to fire their guns, the court may still hold that you acted negligently when you fired your gun.16
Penal Code 246.3 PC is what's known as a wobbler. A "wobbler" is an offense that prosecutors may elect to file as either a misdemeanor or a felony, depending on
- the circumstances of the offense, and
- your criminal history.
If convicted of negligently discharging a firearm as a misdemeanor, you face:
- up to one year in a county jail, and/or
- a maximum $1,000 fine.
If convicted of this offense as a felony, you face:
- 16 months, or two or three years in county jail, and
- a maximum $10,000 fine.17
Revocation of your right to own or acquire firearms
In addition to the above penalties, a conviction under Penal Code 246.3 will result in the loss of your Second Amendment right to bear arms.
If convicted of negligently discharging a firearm as a felony, Penal Code 29800 PC California's "felon with a firearm" law prohibits you from owning or acquiring firearms for life. If convicted of PC 246.3 as a misdemeanor, your firearms ban will be lifted after ten years.18
With respect to a misdemeanor conviction, you must simply wait out the ten-year period before regaining your firearms rights. And with respect to a felony conviction, the only way to restore your California gun rights is to have the felony reduced to a misdemeanor.19
As Riverside criminal defense attorney Michael Scafiddi20 explains, "Unfortunately, when you are convicted of a felony gun offense, there really aren't too many tools that can restore your gun rights. Even expungements, certificates of rehabilitation, and governor's pardons can't necessarily lift a firearms ban when the underlying offense involves a gun."21
California's Three Strikes Law
California's "negligent discharge of a firearm" law is considered a "serious" felony.22 As such, a felony conviction will result in a "strike" on your criminal record pursuant to California's Three Strike's Law.23
If you are subsequently charged with any felony and have a prior "strike" on your record, you will be referred to as a "second striker," and your sentence will be twice the term otherwise required by law.24
If charged with a third felony, and you have two prior strikes, you will be referred to as a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in California state prison.25
California firearm offenses and aliens
If you are a legal immigrant or legal alien, a Penal Code 246.3 conviction could additionally result in deportation.26 For more information about how California's firearm laws affect aliens, please visit our article on California crimes that lead to deportation.
If...in addition to violating California's "negligently discharging a firearm" law...you commit another offense, you are subject to the penalties for that offense as well. Examples of offenses that are commonly charged in connection with Penal Code 246.3 include (but are not limited to):
- Penal Code 25850 PC California's "carrying a loaded firearm in public" law, and
- Penal Code 417 PC California's "brandishing a weapon" law.
Similarly, violating this section can subject you to a variety of sentencing enhancements as well. Sentencing enhancements "enhance" your jail or prison sentence by making it longer...sometimes much longer.
Some California gun enhancements don't apply to PC 246.3. These include
- California's sentencing enhancement for personal use of a gun (which is only imposed on California firearm offenses that don't already involve using a gun),27 and
- California's "10-20-life 'use a gun and you're done'" law (which is only applicable to specifically enumerated felonies that don't include this section).28
The two sentencing enhancements that do apply to negligent discharge...and that are commonly imposed in connection with this firearm offense...are California's criminal street gang enhancement and California's felony-murder rule.
California's criminal street gang sentencing enhancement
Penal Code 186.22 PC California's "gang" sentencing enhancement increases penalties for individuals who commit crimes to benefit gangs.
If prosecutors prove that you negligently discharged your firearm "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", you face a five-year prison sentence in addition and consecutive to your Penal Code 246.3 PC conviction.
When negligently discharging a firearm results in death -- California's felony-murder rule
California's felony-murder rule holds a defendant accountable for murder if he/she or an accomplice kills another person...even accidentally...during the commission of certain felonies.
California courts have held that negligently discharging a firearm poses a sufficient danger to human life. As a result, if you unintentionally kill another person because you negligently fired your gun, that death will support a conviction for second-degree murder under California's felony-murder rule.29
If convicted of second-degree murder, you face a minimum sentence of 15-years-to-life in the state prison.30
Call us for help...
If you or loved one is charged with Penal Code 246.3 PC negligent discharge of a firearm and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada's firearms laws including malicious discharge of a firearm from a building or car in Nevada. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.31
1California Penal Code 246.3 PC -- Negligent discharge of a firearm / BB. ("(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. Section: Previous 244 244.5 245 245.1")
2Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
3People v. Overman (2005) 126 Cal.App.4th 1344, 1362. ("Unlike section 246, [California Penal Code] section 246.3 does not require that an inhabited dwelling, occupied building, or any other specific target be in the defendant's firing range. But like section 246, section 246.3 involves discharge of a firearm under circumstances presenting a significant risk that personal injury or death will result. Section 246 proscribes discharging a firearm at specific targets, the act of which presumably presents a significant risk that personal injury or death will result. Section 246.3 proscribes discharging a firearm in any grossly negligent manner which presents a significant risk that personal injury or death will result. The only difference between sections 246 and 246.3 is that section 246 requires that a specific target (e.g., an inhabited dwelling or an occupied building) be in the defendant's firing range.")
4California Jury Instructions, Criminal CALJIC 9.03.3 -- Negligent discharge of a firearm. ("In order to prove this crime, each of the following elements must be proved:  A person willfully [and unlawfully] discharged a firearm;  The person who discharged the firearm did so in a grossly negligent manner; and  The discharge of the firearm was done in a manner which could result in injury or death to a person.")
5CALJIC 1.20 -- Willfully. ("The word "willfully" when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word "willfully" does not require any intent to violate the law, or to injure another, or to acquire any advantage.")
6California Penal Code 12001 PC -- Definitions.
7California Penal Code 246.3 PC -- Negligent discharge of a firearm, subdivision "c".
8Judicial Council Of California Criminal Jury Instruction (CALCRIM 970) -- Negligent discharge of a firearm. ("Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when:  He or she acts in a reckless way that creates a high risk of death or great bodily injury. AND  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.")
9People v. Alonzo (1993) 13 Cal.App.4th 535, 539. ("Gross negligence, as a basis for criminal liability, requires a showing that the defendant's act was " 'such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.' " ( People v. Penny (1955) 44 Cal.2d 861, 879, 285 P.2d 926, quoting 26 Am.Jur., Homicide, � 210, p. 299; CALJIC No. 3.36.) It is beyond dispute that shooting a gun in a commercial area where people are present constitutes gross negligence under this definition.")
10People v. Clem (2000) 78 Cal.App.4th 346, 352. ("Thus, [Penal Code] section 246.3 [California's "negligent discharge of a firearm" law] by its terms presumes that there are reasonable grounds to suspect that people will be endangered. If there are isolated places in this populous state where the willful discharge of a firearm posed no reasonably foreseeable threat to human life, then that act in those places would not violate section 246.3.")
11California's self-defense laws. ("Judicial Council Of California Criminal Jury Instruction 505 -- Justifiable Homicide: Self-Defense or Defense of Another. ("The defendant acted in lawful (self-defense/ [or] defense of another) if:  The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name or description of third party<) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ <insert other forcible and atrocious crime<)];  The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND  The defendant used no more force than was reasonably necessary to defend against that danger.")
See also Judicial Council Of California Criminal Jury Instruction 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide). ("The defendant acted in lawful (self-defense/ [or] defense of another) if:  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];  The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND  The defendant used no more force than was reasonably necessary to defend against that danger.")
12People v. Robertson (2004) 34 Cal.4th 156, 167 overruled on other grounds. ("In addition, there are circumstances in which the discharge of a firearm [under Penal Code 246.3 PC California's "negligent discharge of a firearm" law] is not unlawful, even if the act entails a risk of serious harm to other persons. One may be privileged to employ force, including that involved in the discharge of a firearm, in defense of oneself or another or of property, under defined circumstances. One is entitled to use such force as is reasonable under the circumstances to repel what is honestly and reasonably perceived to be a threat of imminent harm.")
13People v. Lee (2005) 131 Cal.App.4th 1413, 1427. ("Appellant testified that she fired the gun to prevent an imminent attack by an approaching aggressive dog. It is not for us to determine whether her version of the facts was more or less credible than that of the prosecution's witnesses. Under the applicable rules, her testimony constituted substantial evidence, which required giving the requested instructions on the defense of self-defense, if that defense applies to an attack by an animal.")
14In re Jerry R. (1994) 29 Cal.App.4th 1432, 1440. ("The trial court's statement that whether appellant believed the weapon was loaded was immaterial reveals its misreading of the elements of [Penal Code] section 246.3. Proof of an intentional discharge of the firearm was required, and an honest belief that a gun is empty negatives the mental state of an intent to fire the gun. The two mental states cannot coexist. FN7 FN7. "If ... one is holding a gun supposed to be unloaded, and pulls the trigger expecting no more than a harmless snap of the hammer, but the gun is in fact loaded, and is discharged with fatal consequences, the shooting as well as the killing must be classed as unintentional...")
15CALJIC 9.03.3 -- Negligent discharge of a firearm. Comment Section -- "The committee expresses no opinion as to whether a defendant could be convicted under the statute for firing in a grossly negligent manner which could have injured or killed himself or herself."
16See People v. Alonzo, endnote 10, above. ("Therefore, the only remaining issue is whether respondent's grossly negligent behavior could have resulted in injury or death to a person. We have no difficulty in concluding that it could. The shooting of a gun under the circumstances presented in this case not only presented the possibility of hitting a member of the public, it also presented the very real possibility that it would generate responsive gunfire.")
17California Penal Code 246.3 PC -- Negligent discharge of a firearm / BB, endnote 1, above.
See also California Penal Code 18 PC -- Punishment for felony not otherwise prescribed. ("(a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony 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. (b) Every offense which is prescribed by any law of the state to be a felony punishable by imprisonment or by a fine, but without an alternate sentence to the county jail for a period not exceeding one year, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")
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 or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
18California Penal Code 29800 PC -- Felon with a firearm. ("(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. (2) Any person who has two or more convictions for violating paragraph (2) of subdivision (a) of Section 417 and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony. (b) Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 23515, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code, and who owns or has in possession or under custody or control any firearm is guilty of a felony. (c) Subdivision (a) shall not apply to a person who has been convicted of a felony under the laws of the United States unless either of the following criteria is satisfied: (1) Conviction of a like offense under California law can only result in imposition of felony punishment. (2) The defendant was sentenced to a federal correctional facility for more than 30 days, or received a fine of more than one thousand dollars ($1,000), or received both punishments.")
19If you have your Penal Code 246.3 PC felony conviction reduced to a misdemeanor, you are therefore only subject to the ten-year firearms ban imposed under Penal Code 29800(c)(1) PC.
20Riverside criminal defense attorney Michael Scafiddi defends clients accused of violating California's gun laws throughout the Inland Empire, including San Bernardino, Barstow, Victorville, Rancho Cucamonga, Murrieta and Temecula.
21California Penal Code 1203.4 PC -- Expungements. ("Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Section 29800.")
See also California Penal Code 4852.17 PC -- ("Whenever a person is granted a full and unconditional pardon by the Governor [commonly referred to as a governor's pardon], based upon a certificate of rehabilitation, the pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including but not limited to: (1) the right to vote; (2) the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 12001 and 29800 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.")
22People v. Leslie (1996) 47 Cal.App.4th 198, 203. ("We conclude that under the pronouncement of our Supreme Court in Equarte, the grossly negligent discharge of a firearm [Penal Code 246.3 PC] constitutes a serious felony under section 1192.7, subdivision (c)(8).")
See also California Penal Code 1192.7(c) PC. ("As used in this section 'serious felony' means...(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.") Penal Code 246.3 PC California's "negligent discharge of a firearm" law therefore qualifies as a serious felony when charged as a felony.
23California Penal Code 667 PC -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")
24California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section -- California 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 a prior felony conviction: (1) If a defendant has one prior felony conviction 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) If a defendant has two or more prior felony convictions 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 greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the [California] state prison for 25 years...")
268 U.S. Code Section 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.") Because Penal Code 246.3 PC California's "negligent discharge of a firearm" law involves using a firearm, it is a California crime that can lead to deportation.
27California Penal Code 12022 PC(a)(1) PC -- Being armed with a firearm during the commission of a felony. (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. This additional term shall apply to a person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.)
See also Penal Code 12022.5 PC -- Personally using a firearm during the commission of a felony. ("(a) Except as provided in subdivision (b), any person who personally uses a firearm 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 3, 4, or 10 years, unless use of a firearm is an element of that offense.")
28California Penal Code 12022.53 PC -- California's "10-20-life 'use a gun and you're done'" law.
29See People v. Clem at 351, endnote 11, above. ("Willful discharge of a firearm with gross negligence in violation of [California Penal Code] section 246.3 poses a sufficient danger to human life to support a conviction for second degree felony murder...The offense described in section 246.3 was outlawed precisely because of the lethal danger it posed. (See People v. Alonzo, supra, 13 Cal.App.4th at p. 540, 16 Cal.Rptr.2d 656 [� 246.3 addressed " 'reckless and senseless' " acts which had " 'resulted in the death of at least 2 persons, ... in the Los Angeles area alone' "].) Potential elevation of the offense to felony murder "may serve to deter this type of reprehensible conduct." ( People v. Hansen, supra, at p. 311, 36 Cal.Rptr.2d 609, 885 P.2d 1022.)")
30California Penal Code 190 -- Punishment for murder. ("Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.") Subdivisions "b, c, and d" elevate this punishment where the victim is an on-duty peace officer or when you discharge a firearm from inside a car.
31Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's firearm laws. Their Nevada law offices are located in Reno and Las Vegas.