§ 246.3 PC – Negligent Discharge of a Firearm

Penal Code § 246.3 PC – negligent discharge of a firearm – is “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.

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, that is not the case. You commit the crime of Penal Code 246.3 if you willfully–that is, intentionally–pull the trigger.

Examples

Here are some examples of behavior that could lead to charges of negligently discharging a firearm under California gun laws:

• 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 does not know how to use it, she shows him that she does by firing a shot at a dartboard hung on the wall.

In this article, our California criminal defense attorneys will explain the following:

• 1. What is negligent discharge of a firearm?
• 2. Penalties
• 3. Defenses
• 4. Related Crimes
• Additional Reading

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

1. What is negligent discharge of a firearm?

For you to be convicted of negligently discharging a firearm in California, prosecutors must prove beyond a reasonable doubt the following three elements of the jury instructions:

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.¹

Let’s take a closer look at at these elements of the crime.

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.

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 could not have formed the intent to fire it.²

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).

The crime of negligent discharge can also apply to BB devices. 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.³

“Gross Negligence”

Just being negligent is not enough for you to be guilty of negligent discharge of a firearm. You need to have behaved with “gross negligence.”

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.

In other words, gross negligence has to be something more than ordinary carelessness or a mistake in judgment.⁴

Example: Rodolfo is hanging out in a strip mall parking lot with a fair amount of foot traffic. Rodolfo fires two shots into the air from a gun. His behavior was grossly negligent because 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.⁵

Could Have Resulted in Injury or Death

Finally, firing a gun amounts to negligent discharge only if the shooting could have resulted in an injury or death. 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.”⁶

2. Penalties

Penal Code 246.3 PC is a “wobbler” in California. This means negligent discharge of a firearm may be charged as either a misdemeanor or a felony depending on your criminal history and the circumstances of the case.

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.⁷

This chart illustrates the penalties:

Negligent Discharge of a Firearm	California Penalties
As a misdemeanor	Misdemeanor (summary) probation; Up to 1 year in county jail; and/or Up to $1,000.
As a felony	Felony (formal) probation; 16 months, 2 years, or 3 years in county jail under California’s realignment program; and/or Up to $10,000.

Sentencing Enhancements

Sentences for negligent discharge of a firearm may not be enhanced if you used the gun in the commission of a felony.⁸ California’s “10-20-life use a gun and you’re done” law is inapplicable as well.⁹

If your conviction is for a felony, however, you would face an additional two, three, of four years in prison if your negligent firearm discharge was in association with a criminal street gang.¹⁰

Furthermore, felony negligent discharge of a firearm counts as a “serious felony” under California’s “Three Strikes” law.¹¹ This means if you are subsequently convicted of any other California felony, you will face twice the normal sentence for that second offense.¹² Meanwhile, accumulating three “strike” convictions carries 25 years to life in state prison.¹³

Immigration Consequences

Like most crimes involving firearms, negligently discharging a gun is a so-called “deportable crime.”¹⁴ Therefore, you can be deported if you are not a U.S. citizen, and you are convicted at trial or plead guilty to it.

According to California criminal defense attorney Neil Shouse:¹⁵

“For negligent discharge defendants who are not U.S. citizens, deportation can be a far worse penalty than any fine or jail time. 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. Defenses

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 in defense of someone else). 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.¹⁶

Example: Pamela is out walking her dog when two large, unleashed dogs approach her and seem likely to attack her. Pamela takes out her loaded pistol and fires two warning shots to scare the dogs away. Pamela acted in lawful self-defense, which applies when a threat is posed by animals as well as people.¹⁷

You Believed the Gun Was Unloaded

You are guilty under California Penal Code 246.3 only if you fired a gun intentionally. This means that you need to have known it was loaded.

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.

There Was No Actual Danger of Death or Injury

You are guilty of negligently discharging a firearm only if there was actually a danger that someone could be killed or injured by the gun.

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.

In this type of case, we would search for holes in the prosecution’s story and tell your own version—which the jury may find more convincing.

4. Related Crimes

• Penal Code 187 PC – felony murder
• Penal Code 246 PC – shooting at an inhabited dwelling or occupied car
• Penal Code 417 PC – brandishing a weapon
• Penal Code 29800 PC – felon with a firearm

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• The Unintentional Discharge – Journal of Counterterrorism & Homeland Security International.
• Applying the Presumption of Mens Rea to a Sentencing Factor: Does 18 U.S.C. 924(c)(1)(A)(iii) Penalize the Accidental Discharge of a Firearm – Suffolk University Law Review.
• The Second Amendment Right to Be Negligent – Florida Law Review.
• Sentencing Factors and Intent: The Role of Mens Rea in a Federal Gun Statute – Seton Law Review.
• Unintentional Firearm Injuries: The Price of Protection – American Journal of Preventive Medicine.

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