Penal Code § 246.3 PC – Negligent Discharge of a Firearm

Penal Code § 246.3 PC – negligent discharge of a firearm. This criminal offense is defined as “willfully discharge(ing) a firearm in a grossly negligent manner which could result in injury or death to a person.”

Prosecutors can charge the crime as a misdemeanor or a felony and it carries a sentence of up to 3 years in jail or prison.

The language of the code section reads:

246.3. (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.

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 commit the crime of Penal Code 246.3 if you willfully—that is, intentionally—pull the trigger. ^{1 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 dartboard 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.

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 felony.³

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

• 1. What counts as a negligent discharge of a firearm?
• 2. What are the penalties for Penal Code 246.3 PC?
  • 2.1. Sentencing enhancements
  • 2.2. Negligent discharge and California’s Three Strikes law
  • 2.3. Immigration consequences of a negligent discharge conviction
• 3. What defenses can a defendant raise?
• 4. Are there related crimes?
  • 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. What counts as a 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.

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 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 must have fired the gun intentionally. You are not guilty of this offense if you pulled the trigger by accident.⁶

By extension, 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 another form of combustion).⁹

The crime of negligent discharge can also apply to BB devices (though, as 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. (See also our article on BB gun laws in California).

“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 a mistake in judgment.

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

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. What are the penalties for Penal Code 246.3 PC?

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

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

• Misdemeanor (summary) probation;
• Up to one (1) year in county jail; and/or
• A fine of up to one thousand dollars ($1,000).²⁰

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

• Felony (formal) probation;
• A sentence of sixteen (16) months, two (2) years or three (3) years, served in county jail under California’s realignment program; and/or
• A fine of up to ten thousand dollars ($10,000).²¹

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 the 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.

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

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

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. What defenses can a defendant raise?

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

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 (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.

This could be a promising legal defense to negligent discharge charges if this is the case.

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 of the incident, 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, you can find the holes in the prosecution’s story and tell your own version—which the jury may find more convincing.

4. Are there related crimes?

You should know the following related California crimes if you are charged with negligent discharge.

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

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

• Inhabited house;
• Occupied building; or
• Occupied vehicle.³⁵

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 common for defendants to try to get PC 246 charges reduced to PC 246.3.

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.

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 is not 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 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.

Laws in other states…

For information on Colorado gun crimes, see our article on the Colorado crime of illegal discharge of a firearm | 18-12-107.5 C.R.S.

For information on Nevada gun crimes, see our articles on the Nevada crime of discharging a gun in public and the Nevada crime of discharging a firearm from a structure or vehicle.

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