What is important to understand with laws regarding negligent dishcharge of a firearm is firing a gun in celebration, to show off or to demonstrate how the gun operates can be a criminal offense under California Penal Code 246.31, which punishes anyone who negligently discharges a firearm, BB or pellet gun2.
To be convicted of this charge, the prosecution must prove each element of the offense, which includes3 :
- You fired a gun or firearm4, including a BB gun or pellet gun
- You did so willfully or intentionally5 which could result in the injury or death of another person.
- Your action was grossly negligent6
- And which could have resulted in the injury or death of another person
A Firearm or BB Gun
This code section includes not only a firearm that discharges projectiles, or bullets, by combustion, but also use of a BB gun or pellet gun that fires a projectile using air, gas pressure or spring action. The penalties for negligently firing a BB or pellet gun, though, are only those for misdemeanors. Otherwise, if a firearm was used, the offense is a “wobbler” and the DA has the option of charging you with a misdemeanor or felony.
Your intent in firing the weapon must have been willful, meaning that you knew the gun was loaded. Many times, tragic accidents occur because someone picks up a firearm and wrongly assumes it is unloaded. If you did not load the weapon or see someone else do it, you might have assumed it was not loaded but your actions leading up to firing it could demonstrate otherwise. For example, if you had reason to be upset at someone and picked up a firearm that someone had just fired and fired it at that person, the DA could argue you had knowledge the gun was loaded.
Gross negligence is more than ordinary negligence. For example, making an illegal U-turn and causing an accident is ordinary negligence but if you drive 100 miles per hour while DUI and cause an accident, you could be charged with grossly negligent behavior as your conduct was so reckless that any reasonable person would know or recognize that it was likely to cause serious bodily injury or death. It also displays a conscious disregard or reckless indifference regarding the rights and safety of others.
Firing a gun in the air at an outdoor concert attended by thousands of people shows reckless disregard for the safety of others. Even if it is unlikely that the bullet or projectile would harm anyone, the merest chance of it happening, and the fact that it was done with other people present, elevates the conduct to grossly negligent behavior.
If you fired the weapon in the open desert with no persons around for miles, your action would not be considered grossly negligent and you would not be prosecuted under this code section.
Likelihood of Causing Injury or Death
The DA has the burden of proving that your firing the gun had the likelihood of causing an injury or death. Like the example above, firing the weapon in an isolated area with no one around has no likelihood of causing injury or death. Any time you do fire the weapon with persons present, or even nearby as in an apartment complex, then there is the likelihood that injury or death could occur no matter how remote the chance.
There are defenses available to negligent discharge of a firearm:
Firing a weapon into the air in celebration or to show off are not situations where self-defense would excuse these actions, but there may circumstances where it may apply. To use self-defense, you need to show the following:
- You had the reasonable belief that you or someone else was in imminent danger of suffering bodily injury and,
- You fired the gun with the reasonable belief that you were defending yourself or the other person from imminent harm and,
- You do not use any more force than necessary to protect yourself or the other person
Once the threat or danger passed, you must have ceased from using any more force or more force than necessary to protect yourself. For instance, if the person has fled or become incapacitated, then you may not continue to fire your gun at that person or even use the weapon to physically attack the person.
Lack of Intent
Lack of intent generally pertains to lack of knowledge that the firearm or gun was loaded since you would not have fired it otherwise7. Shooting it accidentally also shows lack of intent.
No likelihood of danger of injury or death
If you fired the weapon in an area where no one is present or very few people are in the vicinity but far enough away from the firing, then the DA would have a difficult time proving this element of PC 246.3. Other circumstances might also exist where a defense attorney could demonstrate that the likelihood of danger was essentially nonexistent.
Firing a firearm in a grossly negligent manner that could result in injury or death to another is a “wobbler,” so that you can be charged with either a misdemeanor or felony.
The exception is that if you used a pellet gun or BB gun in this manner, you can only be charged with a misdemeanor.
- Up to one year in county jail
- Fine of up to $1,000
- Informal probation
- 16 months, 2 or 3 years in county jail (pursuant to state realignment law)
- Fine of up to $10,000
- Formal probation
- Strike under California’s 3-Strikes law under PC 667(e)(1)
Under PC 246.3, you are not subject to an enhanced sentence under PC 12022.53 where you could face an additional 10 or 20 years for using a gun in the commission of a felony or 25 years to life if someone was killed or seriously injured. This enhancement is reserved for specific crimes such as rape, kidnapping, robbery or carjacking.
However, you do face an enhancement if you were acting for the benefit of, or at the direction of, or in association with a gang and with the intent to promote, further or assist in criminal conduct under PC 186.22. If applicable, the court can add 2, 3 or 4 years to your sentence that you could serve in state prison.
If a felony, the court can order that a “strike” be part of your criminal record under PC 667(e)(1). Should you commit a subsequent felony, the court will impose a sentence that is twice what you otherwise would have faced.
A third strike leaves the court with no option but to sentence you to 25 years to life.
Under PC 1203.4, misdemeanors and numerous felony convictions are eligible for expungement. In most cases, an individual convicted under PC 246.3 is eligible for an expungement since no state prison time is imposed.
An expungement is not a total erasure of your record, but it does limit access of your expunged record to law enforcement and court personnel only. Any member of the general public, including private employers and individuals, will not see your record of conviction when performing a criminal background check.
An expunged record enables you to state on any employment application or rental application that you were never convicted of a crime. You are, however, required to disclose your conviction, along with the fact that it was expunged, under the following circumstances:
- You are applying for a professional license or for public sector employment
- You are running for public office
- You are applying for a license or contract with the State Lottery Commission
An expunged record opens door for you when applying for a job or seeking housing. It does not restore your right to possess or own a firearm.
Qualifications for Expungement
If you were convicted under PC 246.3, you qualify for expungement provided you meet the following:
- Served no time in state prison
- Completed all conditions of your sentence and probation
- Have no criminal charges pending
- Have not committed any subsequent offenses
- Committed no probation violation
Under PC 246.3, you would only serve time in state prison if there was a gang enhancement.
Even if you did violate a condition of your probation, it is not a disqualifying condition so long as it was not for committing a criminal offense such as failing a drug test. The court will review your overall criminal record, your need for the expungement order to help your family and other factors.
If you carry or draw a weapon in a threatening, rude or angry manner, you can be convicted of brandishing a weapon, a misdemeanor. It carries a sentence of 3 to 6 months in county jail. You can be charged with both brandishing a weapon and negligent discharge if you wave the weapon around, aim it at someone in an angry manner and then fire it in the air or past someone as a warning.
If you had a prior felony conviction, you are not permitted to possess a firearm let along own or fire one. Firing a firearm automatically exposes you to a violation of PC 29800. If convicted of this offense, it is a felony that carries 16 months, 2 or 3 years in prison.
An inhabited dwelling is a residence or structure where people live. It is irrelevant if anyone is in the dwelling for you to be convicted under PC 246 if you fire a firearm at or very close to the dwelling. This code section also applies if you fire at an occupied car or at or in a building where people are present.
An offense under PC 246 is always a felony and is not a “wobbler.” If convicted, you face the following:
- 6 months to one year in county jail
- In the alternative, state prison time of 3, 5 or 7 years
- And/or a fine up to $10,000
- Possible formal probation as an alternative to state prison or county jail time or in conjunction with some time spent incarcerated in county jail
- A “strike” on your record pursuant to California’s three strikes law
Conviction under this code section is a deportable offense for anyone who is not a US citizen.
There are enhancements since firing a gun at an inhabited dwelling, occupied car or building could harm or kill someone. If it does, significant state prison time will be imposed including 25 years to life if anyone was seriously injured or killed.
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- Penal Code 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. [↩]
- BB Device Deﬁned. Pen. Code, § 246.3(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. [↩]
- Calcrim 970: Shooting Firearm or BB device in grossly negligent manner – The defendant is charged [in Count ] with shooting a (ﬁrearm/BB Device) in a grossly negligent manner [in violation of Penal Code section 246.3]. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant intentionally shot a (ﬁrearm/BB device); 2. The defendant did the shooting with gross negligence; [AND] 3. The shooting could have resulted in the injury or death of a [↩]
- Firearm Deﬁned. Pen. Code, § 16520c – 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 [↩]
- Willful Deﬁned. Pen. Code, § 7(1).The word willfully, when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage. [↩]
- Gross Negligence Deﬁned. People v. Alonzo (1993) 13 Cal.App.4th 535, 540 [16 Cal.Rptr.2d 656]; see People v. Penny (1955) 44 Cal.2d 861, 879–880 [285 P.2d 926])0, [↩]
- Actual Belief Weapon Not Loaded Negates Mental State. People v. Robertson (2004) 34 Cal.4th 156, 167 [17 Cal.Rptr.3d 604, 95 P.3d 872]; In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438–1439, 1440 [35 Cal.Rptr.2d 155] [↩]