Negligent Discharge Of A Firearm

Seeing that gun violence cases have become more prevalent, California law stresses how important it is to be responsible and careful with guns. It is, therefore, not a surprise that California authorities treat negligence with guns very seriously. If you are convicted of negligently discharging a firearm, you may be subject to a lengthy incarceration period and hefty fines. Not to mention, the stain on your criminal record can have lasting adverse effects on your future and may impact your firearm rights.

You need not let that happen by contacting an experienced gun crime defense attorney to help you beat your charges. At Long Beach Criminal Attorney, we have helped thousands of clients charged with negligently discharging a gun, and we can do the same for you. We will do everything, from negotiation with the prosecution to developing a strong defense strategy, to ensure you obtain the most favorable outcome. Call us for a free legal consultation and to learn more.

Defining The California Crime of Negligently Discharging a Firearm

California PC 246.3 describes the crime of negligently discharging a firearm as willfully shooting a gun grossly negligently, which may lead to death or injury to someone. From this definition, there are three facts the prosecution must prove for the judge to convict you, known as the elements making up the crime. They are the following:

  • You willfully discharged a BB device or firearm.
  • You discharged the gun or device grossly and negligently.
  • The firing could have led to someone's death or injury.

Whereas it might sound as though this crime includes accidentally firing a firearm, that is not true. You are guilty under 246.3 PC only if you willfully fire a gun. Willfully means intentionally or purposefully. Additionally, a judge cannot convict you of negligently firing a gun if you reasonably believe the gun was not loaded. That is because you would not have created the intention to shoot the gun if you thought it was not loaded.

According to this law, a BB gadget or firearm is equipment meant to be a weapon from which a projectile is expelled or discharged via a barrel by an explosion force. Negligently discharging a gun also applies to BB gadgets, although the consequences are reduced in that case. A BB device is any gadget that discharges a projectile, for example, a pellet or BB, via the force of gas pressure, spring action, or air pressure.

Acting negligently is not enough to warrant a conviction under 246.3 PC. You must have conducted yourself in a grossly negligent manner. You act grossly negligently if you act carelessly or recklessly, creating a higher risk of substantial bodily harm or demise, and any reasonable party would have been aware that acting that way could raise that kind of risk. Put otherwise, gross negligence is more than an error in judgment or ordinary carelessness.

You act grossly negligently only when you act very differently from how any ordinary cautious individual would act under the same circumstances that your act is disregard for people’s lives or indifferent to the implications of your actions.

Lastly, discharging a firearm is only considered negligent if it could have brought about death or an injury. Remember, that does not imply that it must be probable that the firing would lead to demise or injury. A judge can convict you of this offense, provided it is likely, whether or not it is more unlikely. For example, the state law deems it negligent firing if you discharge warning shots or shoot in the air.

Examples of conduct that would result in PC 246.3 violation charges include:

  • A young boy finds his father's loaded gun lying around and decides to practice target shooting with it. He goes to shoot at some toys in the room in which his younger brother is playing.
  • After the soccer team he supports wins the World Cup, Tim discharges his firearm in the air while celebrating.
  • In a park, Stella is showing her friends a firearm she owns when a man jokingly comments that she likely does not understand how the gun is used. Stella proves to the man that she knows how firearms are used by firing at a tree.

Legal Defenses to PC 246.3 Violations

A skilled gun crime defense attorney can help you if you are accused of negligently firing a gun. Based on your case facts, they may be capable of helping you beat the charges against you by raising various legal defenses, including:

No Actual Danger of Death or Injury Existed

The judge can only find you criminally liable for violating 246.3 PC if there is actual danger of someone being injured or killed by the firearm. This is contingent on the time and place of the shooting and the number of people that were present. All these are facts the prosecution must prove. With help from an experienced gun crimes lawyer, you can poke holes in the D.A. 's story and narrate your side, which the jury might find more convincing.

Self-Defense or Defense of Another

The judge cannot convict you of violating 246.3 PC if you discharged the gun only to defend yourself or another person. This defense is valid if all these are facts:

  • You had reason to believe you or somebody was in immediate danger of being touched illegally or sustaining bodily injury.
  • You had reason to believe you had to discharge a firearm to defend yourself from the danger.
  • You applied no more force than was reasonably required to defend from the danger.

Reasonable Belief that the Firearm was Unloaded

The judge can only find you criminally liable for negligently shooting a gun if you shot the firearm deliberately. That means you must have been aware the firearm was loaded.

Based on the case facts, the prosecutors may have difficulty proving your knowledge of the gun being loaded. It could be that the firearm is a friend's or relative's, or it could be that it has been in storage for so long that you forgot whether or not it was loaded. In these cases, arguing that you reasonably believed the firearm was unloaded is valid.

The Consequences of Negligently Discharging a Firearm

Compared with other gun crimes covered under California state laws, like branding a gun or drive-by-shooting, negligently discharging a gun may appear like a relatively minor offense. However, that is far from the truth. California statute imposes severe consequences for this violation.

Negligently discharging a firearm is considered a wobbler crime, meaning the prosecutor can charge it as a felony or misdemeanor contingent on the case facts and the accused person’s criminal history. But if a violation involves negligently discharging a BB gadget instead of a gun, it is a straight misdemeanor.

As a misdemeanor, this crime carries a jail term not exceeding one year, summary probation, and a fine not exceeding $1,000. If it is a felony, it is punishable by up to three years of jail under the realignment program, formal probation, and a fine not exceeding $10,000.

Sentencing Enhancements

Fortunately, the several sentencing increments imposed on various offenses will not be applied if a judge has found you guilty of violating 246.3 PC. For example, the sentencing increment for personally using a firearm to commit a felony is usually not applicable to negligently discharging a gun since it solely applies to crimes that do not necessarily involve using a gun. Additionally, the 10-20-life “use a firearm and you are done” law solely applies to felonies listed under that statute, and negligently firing a gun is not among them.

However, people accused of violating 246.3 PC are often subject to the gang sentencing increment under PC 186.22. A felony PC 246.3 violation perpetrated in connection with, to benefit, or at the instructions of a street gang and specifically intending to assist in, further, or promote the street gang’s criminal behavior can result in an additional four, three, or two years in incarceration.

A felony 246.3 PC violation is also deemed a serious felony per the state’s Three Strikes law. Therefore, if a court previously found you guilty of a felony 246.3 PC violation and subsequently convicts you of any other state felony offense, you will be subject to twice the usual incarceration period for the second crime per the Three Strikes law. If you amass three strike offenses, including negligently discharging a firearm, you will be subject to between 25 years in prison and life imprisonment.

Immigration Penalties of Negligently Discharging a Firearm

A conviction for negligently discharging a gun can result in severe immigration penalties for immigrant defendants. Like most offenses that involve guns, violating 246.3 PC is considered a deportable violation. Therefore, an immigrant defendant convicted of or who pleaded guilty to the violation can face deportation.

For immigrant defendants, deportation is a much worse consequence than jail and fines, and most defendants admit to committing this offense since they think it is minor, not knowing their entire lives may be changed by that admittance.

Crimes Related to PC 246.3 Violations

Various crimes are closely related to PC 246.3 violations because of their shared elements. Thus, a prosecutor can charge you with these crimes alongside or instead of negligently discharging a gun. They include:

Felony-Murder Rule

In many cases, a person can only face a murder conviction under California law if they acted with malice aforethought. The state’s felony murder rule is, however, one exception to this principle. According to the felony-murder rule, an accused person can be found criminally liable for murder if they accidentally kill a person while perpetrating certain dangerous felonies.

Courts in California used to convict accused persons of murder under the felony-murder rule if they unintentionally killed a person while perpetrating the felony crime of negligently firing a gun. However, the Supreme Court of California changed this condition in 2009 and ruled that negligently discharging a gun is not considered a felony crime to which the felony-murder rule applies.

Thus, if a person is charged with negligently shooting a gun and unintentionally killing a person in the process, they will likely not be found guilty of murder—although an aggressive police officer or D.A. may try telling them otherwise.

Brandishing a Weapon, PC 417

Branding a weapon under 417 PC is the criminal offense of exhibiting or drawing a firearm or any other weapon rudely, angrily, threateningly, or in an argument or fight. If the brandished weapon is a gun, the crime is considered a misdemeanor, carrying a possible jail term of three to six months. Sometimes, a person can be accused of brandishing a gun and negligent discharge simultaneously. This may happen in a situation where the accused was arguing with someone else, and the argument led them to draw a firearm and discharge a warning shot.

Shooting at a Lived-in Structure or Occupied Vehicle, PC 246

You violate PC 246 when you fire a firearm at a lived-in house, occupied vehicle, or occupied building. This crime is considered a felony punishable by up to a year in county jail or seven, five, or three years in prison. Since shooting at a lived-in structure or occupied vehicle carries harsher consequences than negligently shooting a firearm, it is prevalent for accused persons to try having 246 PC charges lowered to 246.3 PC.

Felon In Possession of Gun, PC 29800

If you have been charged with negligently firing a gun and have been convicted of a felony offense before, you may also be subject to charges under PC 29800, felon in possession of a firearm. This law penalizes anybody with a past felony offense conviction who consciously receives or possesses a gun in California. The crime is punishable by up to three years in prison. And, if found guilty of a felony violation of negligently discharging a firearm, PC 29800 will bar you from legally possessing or owning a gun once you finish serving your sentence.

Find an Experienced Gun Crimes Attorney Near Me

If you have been charged with negligently discharging a gun or any other similar offense, we at Long Beach Criminal Attorney can help you. Once you have been charged, your top priority should be regaining your freedom, and we will be there every step of the way to help you achieve that. Thanks to our decades of combined experience, we understand how life-altering any gun offense conviction can be, including negligently discharging a firearm, and we offer expert legal representation and counsel to help our clients avoid that. If you would like to learn more about the crime of negligently discharging a gun or schedule a cost-free consultation, contact us at 562-308-7807.