Penal Code § 246 PC – Shooting at an Inhabited Dwelling or Occupied Vehicle

Penal Code § 246 PC is the California law that prohibits drive-by shootings. More specifically, this section makes it a crime to discharge a firearm at an

• inhabited dwelling,
• occupied building,
• occupied motor vehicle,
• occupied aircraft, or
• an inhabited housecar such as an RV or camper.

This felony offense carries a sentence of up to 7 years in state prison. The sentence can be much longer if a victim is injured or killed.

You can be convicted of this California firearms offense for shooting at a house, apartment, RV or camper even if no one is actually home at the time. All that matters is that someone is currently using the structure as a residence.^1 2 

Also note that shooting at an unoccupied vehicle or uninhabited dwelling can be prosecuted under Penal Code 247b, a separate section. Penal Code 247b is a less serious offense.

Examples

• A man drives with his gun to his ex-wife’s house and fires a “warning shot” in the direction of her front lawn.
• In a fit of road rage, a woman who has just been cut off by another car fires a pistol at that car.
• A woman sees her car being stolen in an act of grand theft auto; she grabs a gun and shoots at the car as it drives away.

Penalties

PC 246 shooting at an occupied building or car is a felony in California.³

If convicted of this offense, you may face one of the following sentence:

• Six (6) months to one (1) year in county jail; or
• Three (3), five (5) or seven (7) years in California state prison.⁴

You may also be fined up to ten thousand dollars ($10,000).⁵

Legal defenses

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

• The legal defense of self-defense;
• The legal defense of accident; and/or
• False accusations.

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

• 1. What is the crime of shooting at an inhabited dwelling?
• 2. What are the penalties for a 246 PC conviction?
  • 2.1. Sentencing enhancements
  • 2.2. Implications and California’s Three Strikes law
  • 2.3. Immigration consequences
• 3. How does a person fight these charges in court?
• 4. Are there related crimes?
  • 4.1. Penal Code 246.3 negligent discharge of a firearm
  • 4.2. Penal Code 245(a)(2) assault with a firearm
  • 4.3. California attempted murder
  • 4.4. Penal Code 29800 felon with a firearm
  • 4.5. Penal Code 26100 drive-by shootings
  • 4.6. Vehicle Code 23110 throwing objects at a motor vehicle

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

1. What is the crime of shooting at an inhabited dwelling?

For you to be guilty under California Penal Code 246 PC, your behavior must meet the legal definition of shooting at an inhabited dwelling or occupied vehicle. This definition consists of the following “elements of the crime”:

1. You willfully and maliciously shot a firearm; and
2. You shot the firearm at either:
   1. An inhabited house, inhabited house car, or inhabited camper; or
   2. An occupied building, occupied motor vehicle, or occupied aircraft.⁶

Let’s take a better look at the terms in this legal definition.

Willfully and maliciously

Committing an act “willfully” means that you did it willingly or on purpose.⁷

And you act “maliciously” if you intentionally do a wrongful act, or if you act with the unlawful intent to disturb, defraud, annoy, or injure someone else.⁸

In other words, you are not considered to have acted willfully and maliciously when you do something entirely on accident.

Example: Aaron is not very experienced with guns and ends up accidentally firing the gun he just got for his birthday in the direction of his friend’s house.

Aaron is probably not guilty of shooting a firearm at an inhabited dwelling house because he did not act willfully or maliciously.

“A firearm”

A “firearm” is defined as 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

Example: One night, Scott fires a BB at his neighbor’s house. Scott is not guilty of shooting a firearm at an inhabited dwelling because he did not use a firearm. (He may, however, face charges for Penal Code 594 PC California vandalism.)

“At”

It might seem like the word “at” doesn’t require any explanation. But in fact, in the context of California law on shooting at an inhabited dwelling or occupied structure, it does.

As used in Penal Code 246, “shooting at” doesn’t have to mean shooting directly at a target. Instead, it can mean either:

• Shooting directly at an inhabited or occupied target; or
• Shooting in close proximity to an inhabited or occupied target, under circumstances that show a conscious disregard for the probability that one or more will strike the target or persons in or around it.¹⁰

Example: Warren drives to his old workplace and fires out of his passenger window at two coworkers, who are not hit. In addition to charges of Penal Code 245(a)(2) assault with a firearm for shooting at these individuals, Warren will face charges of shooting an occupied building.

Warren did not shoot directly at the warehouse, but he fired in its direction, in a way that showed disregard for whether persons inside would get hurt.¹¹

Firing “at” an inhabited dwelling or occupied car does not include firing a shot once you are already inside a building or car.¹²

However, it does include firing a shot from one unit in a multi-family building (such as an apartment or condo building) into another unit.¹³

Example: One night Andrea begins vacuuming fairly late. Annoyed, her downstairs neighbor Betty takes out a gun and fires it into her ceiling.

Betty is guilty of shooting at an inhabited dwelling for firing from her apartment into Andrea’s.¹⁴

An inhabited house, house car or camper

This section covers the act of shooting at inhabited houses (or other residences), house cars and campers.

“House cars” means motor vehicles that are equipped for human habitation, like trailers or RVs. “Campers” are structures that are mounted on motor vehicles and provide facilities for human habitation or camping.¹⁵

“Inhabited” means that someone is using the place as a dwelling. It does not mean that someone needs to be inside at the time of the shooting.¹⁶

Example: Chuck fires his gun into his ex-girlfriend’s trailer in Los Angeles. Even though Chuck’s ex-girlfriend is currently in Hawaii, she is still using it as her home, which means it is “inhabited.” So Chuck is violating Penal Code 246 PC.

A house, house car or camper is also considered to be inhabited if someone was using it as a dwelling and left because a natural or other disaster caused him/her to leave.¹⁷

A residence is considered to be uninhabited only if the residents have moved out and do not intend to return.¹⁸

An occupied building, motor vehicle, or aircraft

You can also violate California’s law against shooting a firearm at an inhabited or occupied dwelling or motor vehicle if you shoot at one of the following while it is occupied:

• A building that is not someone’s home (such as an office or store);
• A motor vehicle (including cars, motorcycles, buses, commercial vehicles, trucks, etc.); or
• An aircraft.¹⁹

If you are accused of shooting at one of these types of structures, you will only be guilty if it was actually occupied—that is, someone was inside it—when you are alleged to have fired at it.²⁰

Example: After being laid off from her job, Jessica goes there at four in the morning when she knows no one is there and shoots at the restaurant’s sign with a shotgun.

Jessica is not guilty of shooting at an occupied structure because the restaurant was not occupied when she shot at it.

2. What are the penalties for a 246 PC conviction?

PC 246 shooting at an inhabited structure or occupied car is a felony in California law.²¹

The potential penalties are:

• Felony (formal) probation;
• Either six (6) months to one (1) year in county jail, OR three (3), five (5) or seven (7) years in state prison; and/or
• A fine of up to ten thousand dollars ($10,000).²²

As a violent firearm offense, a PC 246 conviction can also result in losing one’s gun rights.

 2.1. Sentencing enhancements

Defendants charged with shooting a firearm at an inhabited dwelling or occupied structure frequently see their sentence increased by one of California’s sentencing enhancements.

For example, the sentencing enhancement set forth California’s “10-20-life ‘use a gun and you’re done’” law can apply to a PC 246 conviction in some cases. Specifically, if you:

1. personally and intentionally discharge a firearm at an inhabited dwelling or occupied structure, and
2. proximately cause great bodily injury/harm or death to any person who is not an accomplice by doing so,

then you will face an additional and consecutive sentence of twenty-five (25) years to life in state prison.²³

In addition, defendants charged with shooting at a dwelling or vehicle often face sentences that include the Penal Code 186.22 PC gang sentencing enhancement.

If you shoot a firearm at an inhabited dwelling or occupied structure/vehicle 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—then you may face an additional two (2), three (3), or four (4) years in prison.²⁴

Luckily, though, California’s sentencing enhancement for personal use of a gun in the commission of a felony does not apply to firing at an inhabited dwelling or occupied motor vehicle—because it only applies to offenses that don’t necessarily involve the use of a gun.²⁵

2.2. Implications for and California’s Three Strikes law

California Penal Code 246 is also considered a “serious felony” under California’s “Three Strikes” law, provided that you are convicted of this offense for personally firing a gun (as opposed to aiding and abetting someone else who did).²⁶

So if you have a conviction on your record for this offense, 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.²⁷

And, if you accumulate three “strike” convictions—one or more of which may be a conviction for firing at an inhabited dwelling or occupied building/vehicle—then you will receive a sentence of twenty-five (25) years to life in state prison.²⁸

 2.3. Immigration consequences

A conviction for firing at an inhabited structure or occupied building or vehicle can lead to serious immigration consequences for defendants who are not U.S. citizens

Like most crimes involving firearms, Penal Code 246 is a so-called “deportable crime.”²⁹ 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.

3. How does a person fight these charges in court?

In fighting such a serious firearms charge, it is an enormous help to have an experienced California gun crimes defense attorney on your side. They will be familiar with the most common legal defenses and plea bargain strategies for defendants accused of firing at an occupied dwelling or vehicle.

In our experience, some of the most commonly helpful defenses are:

Self-defense

You are not guilty of shooting at a house or occupied structure if you were acting in self-defense (or defense of someone else).³⁰

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: Mike sees a coyote jump a neighbor’s fence, where a child is playing. Mike pulls out his gun and fires a shot in the direction of the house (but not at the child), hoping to scare the coyote away.

If Mike is charged with discharging a firearm at an inhabited dwelling, he may be able to argue that he is not guilty because he acted in defense of the child.

Accident

As we discussed above, you are not guilty of firing a gun at a dwelling or vehicle unless the prosecutor can show that you acted willfully.³²

So if you pulled the trigger unintentionally, you are not guilty of this offense.

According to Bakersfield criminal defense attorney Neil Shouse³³:

“Lack of criminal intent, or accident, can be a helpful defense to charges of shooting at an inhabited house or occupied vehicle—but only in certain cases. The prosecutor does not need to show that you intended to hit a building or car, for example. But she or he does need to show that you intended to fire the gun in the first place. If you were unfamiliar with firearms or were scared or confused, you may have fired accidentally. Or maybe you had no idea the gun was loaded when you pulled the trigger.”

False accusations/mistaken identity

Of course, if the facts support it, one of the best defenses is that you weren’t the person who committed the crime.

It is not uncommon for people to be falsely accused of firing a gun at a house or vehicle. A family or romantic conflict, a business arrangement gone sour, even mental illness—any of these could cause a person to falsely claim that you fired a gun in his/her direction.

It is also possible that the person accusing you, or the police, genuinely believe you were the culprit—when actually you weren’t. If the shooting took place at night, this is especially likely.

In this case, you will want to hire a criminal defense lawyer who is familiar with the forensic evidence in firearms cases and the investigative techniques that are most effective at ensuring that the true story comes out.

4. Are there related crimes?

There are several California crimes that are often charged along with, or instead of, shooting at an inhabited dwelling or occupied vehicle. These include:

4.1. Penal Code 246.3 negligent discharge of a firearm

Penal Code 246.3 PC negligent discharge of a firearm occurs when someone willfully discharges a firearm with gross negligence, in a way that could result in someone else being injured or killed.³⁴

Negligent discharge is a California “wobbler.” This means that it may be charged as either a misdemeanor or a felony, at the prosecutor’s discretion.³⁵

A misdemeanor negligent discharge conviction carries a lighter sentence and will produce a much less serious record than a felony conviction for firing at an inhabited building or occupied vehicle.

As a result, it may be worth your while to try to get PC 246 charges reduced to PC 246.3 negligent discharge of a firearm charges—particularly if the facts are not clear as to whether you were truly firing at a building or vehicle.

4.2. Penal Code 245(a)(2) assault with a firearm

An “assault” is an unlawful attempt to commit a violent injury on someone else.³⁶ If you are alleged to have used a firearm to assault someone, you will be charged with assault with a firearm under Penal Code 245(a)(2) PC.³⁷

We frequently see defendants charged with both firing at a dwelling or occupied vehicle and assault with a firearm—for example, in cases where they are alleged to have fired a gun at a person who was driving a car or standing outside a house.

Assault with a firearm is another wobbler. If it is charged as a misdemeanor, the potential county jail sentence is six (6) months to one (1) year. Charged as a felony, it carries a state prison sentence of at least two (2) and as many as twelve (12) years, depending on the type of gun used.³⁸

4.3. California attempted murder

The legal definition of attempted murder is taking at least one direct step toward killing another person, with the intent to kill him/her.³⁹

In cases where someone is alleged to have shot a firearm at an inhabited dwelling, occupied commercial building, or occupied vehicle, prosecutors may choose to charge the defendant with attempted murder—if they have grounds for arguing that the defendant intended to kill a specific person who was in the building or vehicle.

Attempted murder carries a sentence of life in prison with the possibility of parole.⁴⁰ For this reason, if you are charged with attempted murder under a scenario like this one, it may be in your best interest to try to bargain the charges down to PC 236 firing at an inhabited building or occupied vehicle.

4.4. Penal Code 29800 felon with a firearm

If you are accused of firing a gun at a building or other structure, 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.⁴¹

This law imposes criminal penalties on anyone with a prior felony conviction who knowingly possesses or receives a firearm in California.⁴² Felon with a firearm carries an additional sentence of sixteen (16) months, two (2) years or three (3) years.⁴³

And, of course, if you are convicted of Penal Code 246, California’s felon with a firearm law will prevent you from lawfully owning or possessing a firearm after you have served your sentence.

4.5. Penal Code 26100 drive-by shootings

California’s “drive-by shooting” law, Penal Code 26100 PC, makes it a crime to discharge a firearm from a motor vehicle.⁴⁴

So if you are accused of firing from a vehicle at another (occupied) vehicle, or at an occupied building or inhabited dwelling, you could face charges under both California Penal Code 246 and California Penal Code 26100.

Many drive-by shootings are wobblers, with misdemeanor sentences up to one (1) year and felony sentences ranging from sixteen (16) months to three (3) years. However, if you are accused of shooting at a person, then you will always be charged with drive-by shooting as a felony, with potential sentences of three (3), five (5) or seven (7) years.⁴⁵

4.6. Vehicle Code 23110 throwing objects at a motor vehicle

California’s law against throwing things at motor vehicles, Vehicle Code 23110 VC, makes it a crime to throw any object at a motor vehicle or motor vehicle occupant on a public street.⁴⁶

VC 23110 is a misdemeanor in most cases but becomes a felony if the defendant willfully and maliciously throws an object or substance capable of causing serious bodily harm, with the intent to cause great bodily injury.⁴⁷

In other words, California law punishes throwing potentially harmful objects at motor vehicles as seriously as it takes shooting guns at occupied vehicles.

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