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Negligent Discharge of a Firearm Penal Code 246 3 PC

Pursuant to Penal Code 246.3 PC, the offense of negligent discharge of a firearm means willfully to discharge a firearm, in a grossly negligent manner, such that it could result in someone’s injury or death. The crime can be charged as a misdemeanor or a felony, and carries a sentence of up to 3 years in custody.

246.3 PC states that “(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.”

Although it may sound as if the crime of “negligently discharging a firearm” includes shooting a gun by accident, in fact that is not so. One can be found guilty of this crime of Penal Code 246.3 if they willfully—that is, intentionally—pull the trigger.

Possible Penalties You may face for a Penal Code 246.3 violation

In comparison to other offenses covered by California gun legislation, like Penal Code 417 PC brandishing a weapon or Penal Code 26100 PC drive-by shootings—negligent discharge of a firearm may appear to be a pretty minor matter.

On the contrary, the laws of the State of California imposes harsh punishments for this offense. Negligently firing a gun is what is known as a “wobbler offense”—which means that it may be handled as either a misdemeanor or a felony.

As a misdemeanor charge, PC 246.3 negligent discharge carries a county jail term of 1 year. Imposed as a felony, it can lead to a term of 16 months,  2  years or  3 years behind bars.

The best Legal defenses to a negligent discharge of a firearm charge

Nevertheless,  a skilled gun crimes defense attorney can be an asset. Based on the circumstances of the assertions, he or she may be able to help you overcome the charges with one or more of these legal defenses:

  • You moved  in self-defense
  • You believed the gun was empty 
  • There was no real danger of death or injury.

In this article, the California criminal defense attorneys from Spodek Law Group will show you the following:

  1. What actions count as a negligent discharge of a firearm?
  2. What are the punishments for a 246.3 conviction?
  3. What defenses can an accused raise?
  4. Are there associated crimes?

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

1. What actions count as a negligent discharge of a firearm?

The actual legal definition of negligently discharging a firearm consists of 3 “elements of the crime.” These are key points that the prosecutor must show a judge in order for you to be found guilty of this offense.

The necessary elements  of negligent discharge are:

  1. You deliberately shot a firearm or a BB device;
  2. You shot the gun with “gross negligence”
  3. The shooting could have resulted in another person’s injury  or death.

Defining Terms

The word “Intentional”

Among the main elements of the crime of negligent discharge is that you need to have fired the gun intentionally. If you pulled the trigger accidently, you are not guilty of this crime. In other words, this means that you cannot be convicted of negligently discharging a firearm if you genuinely believed the firearm was unloaded.  If you thought it was empty, you couldn’t have had any intent to fire it.

The term “Gross negligence”

Simply acting negligently isn’t sufficient for you to be guilty of negligent discharge of a firearm. One need to have behaved with “gross negligence.”

You performed gross negligence only when both of the following are true:

  • You act recklessly in a manner that imposes a high risk of death or great bodily injury on someone; and
  • A rational indvidual would have known that acting in that way would create such a risk.

Simply put, gross negligence has to be something more than common carelessness.

To go deeper, an individual acts with gross negligence only when he or she acts so differently from the way an ordinarily careful person would act in the same situation that his or her actions amount to disregard for human life, or indifference to the consequences of his or her actions.

2. What are the punishments for a 246.3 conviction?

Penal Code 246.3 negligent discharge is what is known as a “wobbler” in California law—meaning that it may be imposed as either a misdemeanor or a felony.

The prosecutor determines whether to charge this offense as a misdemeanor or a felony. He or she will make that conclusion based on:

  • The circumstances of the allegations
  • The accused’s criminal history.

The sole deviation from this is if the negligent discharge is done with a BB device rather than a firearm.Then , it is always a misdemeanor.

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

  • Misdemeanor probation
  • Up to a year in county jail
  • A fine of up to $1,000

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

  • Felony (formal) probation;
  • A sentence of 16 months, 2 or 3 years, served in county jail under California’s realignment program
  • A fine of up to ($10,000).

Possible Sentencing enhancements

Mercifully, many sentencing enhancements that apply to a number of California crimes do not apply if you are convicted under California Penal Code 246.3. Nevertheless, accused charged with negligent discharge often face sentences that include the Penal Code 186.22 PC gang sentencing enhancement.

The crime of felony negligent discharge of a firearm that is executed 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 activities—can lead to an additional 2, 3, or 4 years behind bars.

PC 246.3 Negligent discharge and California’s Three Strikes law

Felony negligent discharge is also categorized as “serious felony” under California’s “Three Strikes” law.  Therefore, if you have a conviction on your record for PC 246.3 as a felony, and you are subsequently charged with additional California felonies, you will face twice the normal sentence for the subsequent offenses under California’s “Three Strikes” law.  On the third “strike” conviction you face a sentence of (25) years to life in California state prison.

Immigration repercussions of a negligent discharge conviction

A conviction on charges of negligent discharge of a firearm can indeed lead to dire immigration consequences for defendants who are not citizens of the United States.  Similarly to most crimes involving weapons , negligently discharging a gun is in the realm of “deportable crimes.”   If you are not a U.S. citizen, and you get convicted of, or plead guilty to this crime, you could face deportation.

3. What defenses can any accused raise?

All persons facing charges under this statute should do their best to find a criminal defense law firm with the experience and credentials to productively fight negligent discharge of a firearm charges.

In our experience, some of the most useful legal defenses in these types of cases include the ones we will detail below.

Claiming Self-defense

If you were acting in self-defense (or defense of someone else), then you are not guilty of negligently shooting a weapon.  You need to be able to show that:

  • You had an undeniable reason to believe that you or someone else was in imminent danger of suffering bodily injury or being touched unlawfully;
  • You had an undeniable reason to believe that you needed to fire the weapon to defend against that danger; and
  • You used no more force than was necessary to defend yourself and/or others against that danger.

Also, according to the facts of your specific matter, it may not be easy for the district attorney to demonstrate beyond a reasonable doubt that you knew the firearm was loaded. 

The “no real danger of death or injury” defense

One is only culpable of negligently discharging a firearm if there was actually a real threat that someone could be killed or injured by said firearm. This fact is reliant upon the place and time where the event took place, and how many people were around.  These are the facts that the prosecutor will need to establish.

4. Are there associated crimes?

If you are imposed with negligent discharge, you should be aware of the following related California crimes.

  1. Penal Code 246  – the shooting at an inhabited dwelling or occupied car statute
  2. Penal Code 417 – the brandishing a weapon law
  3. California’s “felony-murder” rule*
  4. Penal Code 29800 – the felon with a firearm law

* It is worth noting that if an individual is facing accusations of negligently discharging a weapon and accidentally killing someone in the process, he or she probably can NOT be convicted of murder.  

To get your questions about the California crime of negligently discharging a firearm answered, or to discuss your case discretely  with one of our highly skilled California criminal defense attorneys, do not hesitate to contact us at Spodek Law Group.

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