Discharging a BB gun or firearm in a manner likely to result in injury or death is an offense under Penal Code 246.3. This statute describes the discharge as a grossly negligent act since it poses a significant risk to human life. This law seeks to deter individuals from shooting BB guns or firearms randomly during events, celebrations, festivities, or for pleasure in the interest of public safety. As the Los Angeles Criminal Attorney team details below, negligent discharge of firearms is a serious charge that results in significant penalties if convicted. However, with the right legal representation, you can raise a defense to challenge the case and avoid financial penalties, imprisonment, and a lasting record.

Negligent Discharge of a Firearm Under California Law

Penal Code 246.3 makes it a crime to willfully discharge a firearm without legal authorization in a grossly negligent manner likely to result in the injury or death of another person. PC 246.3’s definition of a negligent firearm discharge presents particular elements that prosecutors must prove beyond a reasonable doubt. The elements are:

  • You willfully fired a BB gun or a firearm
  • You fired the device or gun with gross negligence, and
  • The discharge could have resulted in another person sustaining an injury or dying

Let us look at each element in detail.

Intentionally Firing a Gun

Willful action is critical in a PC 246.3 violation case. You must have deliberately fired the BB gun or firearm for the courts to find you guilty. Accidental firing does not meet the willful action threshold. Therefore, you are not guilty if you unintentionally pulled the trigger.

Accidental firing also extends to situations where you believe the firearm was not loaded. This belief means you could not have formulated the intent to fire the gun.

BB Device or a Firearm

PC 246.3 applies only to BB devices and firearms.

BB guns or devices expel projectiles, specifically pellets or BBs, through gas pressure, a force of air, or spring action.

A firearm is a device designed to be utilized as a weapon that requires the force of an explosion to expel or discharge a projectile through a barrel. Examples include pistols, revolvers, and rifles.

Gross Negligence

Ordinary negligence is insufficient to hold you liable for negligently firing a gun. You need to have acted with gross negligence.

Ordinary negligence refers to errors in judgment, ordinary carelessness, or failure to exercise the caution necessary in particular circumstances. Gross negligence, on the other hand, is more significant. You act with gross negligence when the following are true:

  • You act recklessly in a manner likely to create a substantial risk of great bodily injury or death, and
  • A reasonable individual would conclude that behaving similarly would create said risk

A person is said to act with gross negligence if he/she acts in a manner different from how an ordinary individual would have behaved, given the circumstances. Thus, his/her actions amount to indifference or disregard for human life.

Note: The injury standard under PC 246.3 is great bodily injury (GBI). An injury meets the GBI standard when it is substantial, more significant than moderate or minor harm. However, an injury does not have to be permanent or severe for the courts to deem it a GBI.

Whether an injury is a GBI is a question of fact to be determined by the jury or judge. In past cases, the courts decided the following were great bodily injuries:

  • Gunshot wounds
  • Broken bones
  • Contusions, and
  • Concussions

 Less severe injuries, financial losses, or emotional scarring are not GBIs.

Potential to Result in Injury or Death

Your firing must have the potential to result in injury or death. If not, the courts will not find you guilty. Potential here means that death or injury is possible. It does not necessarily mean that an injury or death is inevitable. The courts will find you guilty even if the injury or death was highly unlikely.

For example, it is doubtful that firing into the air or firing warning shots away from a crowd will result in injury or death since you are not targeting any individual. However, the risk still exists. This situation differs from when you fire your gun when no one else is nearby. When no one is nearby, the courts will not find you guilty.

For example, Jimmy is camping in a national forest with a rifle. The sounds of a bear growling awaken him. He reaches for his rifle and fires warning shots to defend himself from the bear. A forest ranger hears the shots, gets to Jimmy’s location, and reports the matter to the local police.

Jimmy is not guilty of a negligent firearm discharge, though he deliberated and fired the gun. It is doubtful that his actions would have resulted in another person sustaining injuries or dying since no one was nearby.

Examples of Acts that Could Result in Negligent Discharge of a Firearm Charges

Here are some examples of situations where prosecution under PC 246 would be appropriate:

  • A man firing his gun in the air during celebrations after his football team wins the Super Bowl.
  • A person firing at a wall painting in the house after being taunted by his friends at a party that he does not know how to use a gun.
  • Shooting a BB gun at objects on the streets with pedestrians walking nearby
  • A minor finds her father’s gun in the house and shoots at his sister’s toys close to where the sister is playing.
  • Engaging in target practice while children play nearby.

Defenses You Can Raise in Negligent Discharge of a Firearm Charges

You can raise several defenses to challenge the allegations of negligently discharging a firearm. The choice of an ideal defense depends on the circumstances of your case. Get in touch with an experienced attorney to review your case and get advice on the best legal strategy.

Here are a few defenses your attorney can assert on your behalf:

You Acted in Self-Defense

The law allows you to defend yourself or another against imminent danger. Thus, you are not guilty of negligently discharging a gun if you acted in self-defense. This defense only applies if the following are true:

  • You reasonably believed that you or another individual was in imminent danger of sustaining a serious physical injury or being touched unlawfully,
  • You reasonably believed that iring a gun was the best cause of action to defend yourself or the other person against the danger, and
  • You used force no more than necessary to defend yourself or the other party against the danger.

No Risk of Injury or Death

You are not guilty of a PC 246.3 violation if your actions pose no actual danger of significant physical injury or death to another. The jury relies on the time and location at which the alleged incident occurred. Further, they also consider the number of people nearby to determine whether a risk of injury or death exists.

For example, firing into a park during the day creates a significant risk of injury or death. The risk is significantly reduced if the shooting happens at night when no one is in the park.

Additionally, discharging a gun in a forest while camping presents no risk of injury or death. The danger is present if you shoot in a neighborhood, even if no one was around when you fired the gun.

Experienced attorneys will find gaps in the prosecution’s version of events and present your story. The aim is to convince the jury that your version of events is more likely.

You Thought the Firearm Was Unloaded

Intentionally firing a gun requires that you know the gun is loaded. Prosecutors must prove that you knew the gun was loaded. However, intent is not easy to prove. The state will use eyewitness accounts to demonstrate to the jury that you knew the gun was loaded.

On the other hand, the defense attorney challenges the prosecution’s case by asserting a possibility that you did not know the firearm was loaded.

For example, your friend could have owned the gun, or you stumbled on it in your parent’s home and had never seen it before. In the first scenario, not unless your friend explicitly tells you the gun is loaded or you see him/her load or fire the firearm, it is possible you did not know the gun was loaded. Similarly, in the second situation, stumbling into a gun for the first time and not knowing how guns operate, it is unlikely you would have known the gun was loaded.

Thus, if you believed the gun was unloaded, you could reasonably conclude that your actions posed no risk of injury or death.

You Were Falsely Accused

Cases of false accusations in PC 246.3 violations are common, especially in domestic violence disputes. One party alleges the accused negligently discharged a weapon to cover their involvement in the case. Further, most accusations aim to depict the accused as a danger to the lives of his/her romantic partner or children to convince the courts of the threat the defendant poses. This will likely persuade the courts to grant custody in favor of the accuser.

Criminal defense attorneys conduct independent investigations to establish the truth. In instances of false accusations, attorneys find past false accusations, a history of the accuser being the aggressor, and false testimonies. Attorneys submit their findings as evidence to convince the jury of your innocence.

Penalties for Negligent Discharge of a Firearm

Negligent discharge of a gun is a wobbler offense. Prosecutors decide whether to pursue misdemeanor or felony violation charges after considering the circumstances of your case and your criminal history. However, the law provides an exception: a negligent discharge involving a BB gun is a misdemeanor.

If convicted of a misdemeanor violation, you will face the following penalties:

  • A maximum of one year in jail,
  • A maximum fine of $1,000 or both.
  • Misdemeanor or summary probation instead of jail time.

If convicted of a felony violation, you will face the following penalties:

  • 16 months, two or three years in jail under California’s realignment program
  • A maximum fine of $10,000 or both.
  • Felony or formal probation instead of jail time.

California’s realignment program, under Assembly Bill 109 (AB 109), became law after California voters approved it in 2011. It provides that defendants convicted of non-violent offenses or less serious crimes serve time in jail instead of prison.

Sentence Enhancements

The courts impose sentence enhancements in three situations, namely:

  • Cases related to gang activity, according to Penal Code 186.22
  • Felonies outlined in California’s 10-20-life gun rule — Penal Code 12022.5 adds 10, 20, or 25-years-to-life in prison for offenders of serious felonies. PC 246.3 is not one of them.
  • Cases involving the personal use of a firearm in the commission of a felony — Senate Bill 620, passed in January 2018, allows sentence enhancements for offenders who possess and use the gun to or are accomplices in the commission of a crime.

Fortunately, negligent discharge of firearms only results in sentencing enhancements under Penal Code 186.22. You will receive penalties outlined under Penal Code 186.22 if you commit a felony in furtherance of gang activity or participate in a gang while committing a felony.

You will receive an additional two, three, or four years to your sentence if found guilty under PC 186.22.

Three Strikes Law

Negligent discharge of a gun is a serious felony under the Three Strikes Law. Thus, the PC 246.3 violation will earn you a strike if you are convicted of felony charges.

If the negligent discharge of a gun is a first-strikeable offense on your record, you will serve the penalties as issued by the judge. If you have a prior strike on our record, a conviction under PC 246.3 will result in you facing twice the sentence imposed by the judge. If you have two previous strikes, a conviction on felony charges under PC 246.3 will result in you facing 25 years to life in prison.

Immigration and Gun Rights Consequences

Negligently discharging a firearm is a deportable offense. Non-citizens risk being deported from the United States and marked as inadmissible if convicted or if you plead guilty to the crime. Thus, you will be denied reentry to the U.S.

You will lose your gun rights after being convicted of felony charges. Penal Code 29800 bars felons from owning, possessing, purchasing, or handling firearms. You risk additional charges and up to three years in prison if you violate PC 29800.

Crimes Related to Negligent Discharge of a Firearm Charges

You can also face prosecution for the following crimes:

  • Shooting at an occupied car or an inhabited dwelling — A PC 246 violation
  • Brandishing a weapon — A PC 417 violation
  • California murder rule
  1. Shooting at an Occupied Car or an Inhabited Dwelling

You will face prosecution under PC 246 for discharging a gun at an occupied building, inhabited dwelling, occupied aircraft or car, or an inhabited house vehicle.

Prosecutors must prove the following elements:

  • You intentionally and maliciously discharged a firearm — Acting maliciously refers to acting with an illegal intent to annoy, injure, disturb or defraud another person, and
  • You fired the gun at either:
  1. An occupied vehicle, building, aircraft, or
  2. An inhabited house car, inhabited house, or inhabited camper

It is crucial to take note of PC 246’s language about firing “at.” While it seems apparent that the reference is to direct shooting at the target, the legal definition also includes shooting close to the target. The description also incorporates the conscious disregard for the likelihood that the shooting will result in striking the target or individuals around the mark.

Penalties for PC 246 Violation

Shooting at an occupied car or an inhabited dwelling results in felony penalties upon conviction, namely:

  • Felony or formal probation, or
  • Six months to one year in jail or three, five, or seven years in prison
  • A maximum fine of $10,000 or both

The judge will also impose sentence enhancements under PC 186.2 and California’s 10-20-life gun rule.

  1. Brandishing a Weapon

It is a crime to unlawfully exhibit or draw a deadly weapon in a threatening, angry, or rude manner in the presence of another individual. Any act that fits this definition and is not self-defense will result in prosecution under PC 417.

Prosecutors must prove the following:

  • You exhibited or drew a firearm in another person’s presence
  • You did so in a threatening, angry, or rude manner
  • You used the gun in a quarrel or fight, and
  • You did not act in self-defense

Penalties for PC 417 Violations

Penalties for a PC 417 violation vary depending on the circumstances of your case.

If you brandish a deadly weapon other than a gun, you will face the following misdemeanor penalties under PC 417(a)(1):

  • A jail sentence of no less than 30 days and no more than one year
  • A maximum fine of $1,000 or both

If you brandish a firearm, you will face the following misdemeanor penalties under PC 417(a)(2):

  • A jail sentence of three months to one year
  • A maximum fine of $1,000 or both

If you brandish a firearm at daycare while it is open, the violation is a wobbler. You will face the following penalties under PC 417(b):

For a misdemeanor violation:

  • A jail sentence of up to one year
  • A maximum fine of $1,000 or both

For a misdemeanor violation:

  • A prison sentence of one, two, or three years,
  • A loss of your gun rights

If you brandish a gun at a police officer, the violation is a wobbler. You will face the following penalties under PC 417(b):

For a misdemeanor violation:

  • A jail sentence of up to one year
  • A maximum fine of $1,000 or both

For a misdemeanor violation:

  • A prison sentence of one, two, or three years,
  • A loss of your gun rights
  1. California Murder Rule

What if you accidentally kill another person while negligently discharging your firearm?

Before a ruling by California’s Supreme Court in 2009, an individual would face murder charges for committing, attempting to commit, or being a significant participant in a felony crime and:

  • Directly kill another
  • Causes the death of a police officer discharging his/her duty, or
  • Aids and abets in a first-degree murder with the intention to kill

In other words, if you killed someone while committing a felony, you would face murder charges under the felony murder rule. Prosecutors would charge you with murder if your negligent discharge or other felonious act resulted in another person's demise.

However, the 2009 ruling held that negligent discharge was not a crime to which the felony murder rule applied. Under this rule, prosecutors can attempt to push for a murder charge. However, it is bound to be dismissed.

How an Experienced Attorney Can Help You

Defending against PC 246.3 violation charges is an elaborate process. Early intervention is critical. Engaging an attorney early will help them review the case and, if applicable, negotiate with the prosecution to drop the case or reduce the charges. Should this fail, your attorney will represent you in court.

Part of the initial review involves identifying the potential defenses and establishing the holes in the case as presented by the prosecution. We will then formulate a winning strategy.

Find a Gun and Weapons Offenses Experts Near Me

Are you or a loved one facing charges of negligent discharge of a firearm?

Contact a guns and weapons expert immediately. The charges require a seasoned attorney in your defense to fight the allegations adequately. A conviction will result in life-changing consequences, and we at the Los Angeles Criminal Attorney understand this. We have helped clients successfully fight the charges thanks to our experience and the knowledge we have of gun and weapons laws. For more information, please contact us at 424-333-0943.