California Penal Code § 246 PC makes it a felony crime to discharge a firearm at an inhabited home or an occupied vehicle. Penalties include up to seven years in prison and up to $10,000 in fines, though the sentence can be much longer if a victim is injured or killed.
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.
The following graphic shows the types of shooting targets that can lead to Penal Code 246 charges:
In this article, our California criminal defense attorneys address the following topics re. shooting at an inhabited dwelling or occupied Vehicle:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Penal Code 246 PC makes it a crime to fire a firearm at an inhabited dwelling or occupied vehicle.
1. Elements
California Criminal Jury Instruction “CALCRIM” 965 spells out the elements of shooting at an inhabited dwelling or occupied vehicle. For you to be convicted of violating Penal Code 246 PC, prosecutors must prove beyond a reasonable doubt the following two elements of the crime:
- You willfully and maliciously shot a firearm; and
- You shot the firearm at either:
- An inhabited house, inhabited house car, or inhabited camper; or
- An occupied building, occupied motor vehicle, or occupied aircraft.1
Let’s take a better look at the terms in this definition.
“Willfully and Maliciously”
Committing an act “willfully” means that you did it willingly or on purpose. 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.2
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 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.3
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 vandalism.)
“At”
As used in Penal Code 246, “shooting at” does not have to mean shooting directly at a target. It can also mean:
- shooting in close proximity to an inhabited or occupied target
- under circumstances that show a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it.
Firing “at” an inhabited dwelling or occupied car does not include firing a shot once you are already inside a building or car. 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.4
“An Inhabited House, House Car or Camper”
“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.
“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.
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 them to leave. A residence is considered to be uninhabited only if the residents have moved out and do not intend to return.5
“An Occupied Building, Motor Vehicle, or Aircraft”
You can also violate PC 246 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.
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.6
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.
A conviction can lead to a sentence of up to 7 years in state prison.
2. Penalties
Shooting at an inhabited structure or occupied car is a felony in California. The 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).7
As a violent firearm offense, a PC 246 conviction can also result in losing your gun rights.
Sentencing Enhancements
Under California’s “10-20-life ‘use a gun and you’re done’” law, you face an additional 25 years-to-life in state prison if you:
- personally and intentionally discharge a firearm at an inhabited dwelling or occupied structure and
- proximately cause great bodily injury/harm or death to any person who is not an accomplice by doing so.8
If you were acting in furtherance of a criminal street gang (PC 186.22), you also face an additional sentence of two, three, or four years.9
Note that California’s sentencing enhancement for personal use of a gun in the commission of a felony does not apply to PC 246 cases.10
California’s Three Strikes Law
Penal Code 246 is 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).
So if you have a conviction on your record for this offense, and you are subsequently charged with another serious or violent felon, you will face twice the normal sentence for that second offense.
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 25 years-to-life in state prison.11
Immigration Consequences
Penal Code 246 is a deportable crime.12 So if you are not a U.S. citizen, contact legal counsel right away to try to get your charge reduced or dismissed.
3. Defenses
Here at Shouse Law Group, we have represented literally thousands of people charged with firearms crimes, including PC 246. In our experience, the following three defenses have proven very effective with judges, juries, and prosecutors at getting these charges dismissed.
You Acted in 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:
- You reasonably believed that you or someone else was in imminent danger of suffering bodily injury or being touched unlawfully;
- You reasonably believed that you needed to fire a gun to defend against that danger; and
- You used no more force than was reasonably necessary to defend against that danger.13
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.
The Incident Was an 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.14 So if you pulled the trigger unintentionally, you are not guilty of this offense.
According to Bakersfield criminal defense attorney Neil Shouse:15
“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. However, they do 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.”
You Are the Victim of False Accusations/Mistaken Identity
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 make a false claim that you fired a gun in their direction.
It is also possible that the person accusing you genuinely believes you were the culprit when actually you were not. 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 forensic evidence in firearms cases and the investigative techniques that are most effective at ensuring that the true story comes out.
4. Related Crimes
- Assault with a firearm (Penal Code 245(a)(2) PC)
- Attempted murder (Penal Code 644/187 PC)
- Drive-by shooting (Penal Code 26100 PC)
- Felon with a firearm (Penal Code 29800 PC)
- Negligent discharge of a firearm (Penal Code 246.4 PC)
- Shooting at an unoccupied vehicle or uninhabited dwelling (Penal Code 247b PC)
- Throwing things at motor vehicles (Vehicle Code 23110 VC)
Legal References:
- Penal Code 246 PC – Shooting at inhabited dwelling house, occupied building, vehicle, or aircraft, or inhabited housecar or camper; punishment. (“Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year. As used in this section, “inhabited” means currently being used for dwelling purposes, whether occupied or not.”). Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies in addition to the imprisonment prescribed.”). Judicial Council of California Criminal Jury Instruction (“CALCRIM”) 965 – Shooting at Inhabited House or Occupied Motor Vehicle. (“The defendant is charged [in Count ] with shooting at an (inhabited house/inhabited house car/inhabited camper/occupied building/occupied motor vehicle/occupied aircraft) [in violation of Penal Code section 246]. To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant willfully and maliciously shot a firearm; [AND] 2 The defendant shot the firearm at an (inhabited house/inhabited house car/inhabited camper/occupied building/occupied motor vehicle/occupied aircraft)(;/.) <Give element 3 when instructing on self-defense or defense of another.> [AND 3 The defendant did not act (in self-defense/ [or] in defense of someone else).]”)
- CALCRIM 965 (“Someone commits an act willfully when he or she does it willingly or on purpose.”)
- Same. (“[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 other form of combustion.]”)
- People v. Overman (2005) 126 Cal.App.4th 1344, 1355-56. (“As we explain, section 246 is not limited to shooting directly at an inhabited or occupied target. Rather, it proscribes shooting either directly at or in close proximity to an inhabited or occupied target under circumstances showing a conscious disregard for the probability that one or more will strike the target or persons in or around it.”). People v. Stepney (1981) 120 Cal.App.3d 1016, 1021. (“We conclude that the firing of a pistol within a dwelling house does not constitute a violation of Penal Code section 246. The most that can be said for appellant’s conduct was that he intentionally discharged a pistol within a dwelling. Because that conduct was not proscribed by the statute under which he was prosecuted, his conviction must be reversed. We carefully note, however, that a different question would be presented if a person fired a weapon from one apartment into an adjoining apartment, either through the common wall, or through the floor or ceiling. A different question would also be presented if an individual discharged a firearm in a hallway of a multiple family dwelling. We make these references to emphasize that our decision here is limited to the discharge of a firearm within a dwelling.”). People v. Jischke (1996) 51 Cal.App.4th 552, 556. (“Here, although defendant fired the gun while standing inside his own apartment, he also fired it in the direction of the apartment below. Defendant’s floor was Betty Fry’s ceiling. In shooting through his own floor, defendant necessarily shot into and “at” the adjacent dwelling unit. We conclude that defendant was properly convicted of violating Penal Code section 246 [shooting at an inhabited dwelling or occupied vehicle].
- CALCRIM 965 (“[A house car is a motor vehicle originally designed, or permanently altered, and equipped for human habitation, or to which a camper has been permanently attached.] [A camper is a structure designed to be mounted upon a motor vehicle and to provide facilities for human habitation or camping purposes.]”)
- CALCRIM 965.
- Penal Code 246 PC.
- Penal Code 12022.53 PC – Sentence enhancements for persons convicted of enumerated felonies.
- Penal Code 186.22 PC – Participation in criminal street gang; penalty.
- Penal Code 12022 PC.
- Penal Code 1192.7 PC – Definition of “serious felony.” (“(c) As used in this section, “serious felony” means any of the following: . . . (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm [this obviously includes inhabited dwelling or occupied motor vehicle]; . . . .”). Penal Code 667(e)(1) PC – Three strikes law.
- Immigration & Nationality Act (“INA”) 237, 8 U.S.C. 1227 – Deportable aliens. CALCRIM 965 – Shooting at Inhabited House or Occupied Motor Vehicle (Pen. Code, § 246).
- CALCRIM 3470 – Right to Self-Defense or Defense of Another
- CALCRIM 965.
- Bakersfield criminal defense attorney Neil Shouse is the founder and Managing Attorney of Shouse Law Group. He served five years in the Los Angeles County District Attorney’s office, prosecuting more than 60 criminal trials with an astonishing 96% success rate in felony jury trials to verdict. Now Mr. Shouse defends clients accused of gun crimes, drug crimes, DUI and everything in between.