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Firearm offenses come in different forms depending on the type of firearm used and how it is discharged. Anytime you fire a gun that is not at a firing range or for hunting purposes you are likely committing a criminal offense. Even if you feel you are doing so in self-defense or are merely having fun, you risk being charged with a serious felony and spending considerable time in state prison.
Should you intentionally discharge a firearm at an inhabited dwelling or at an occupied motor vehicle or building, then your conduct comes under PC 246, an offense commonly targeted at gang members. It makes no difference for purposes of this code section if the dwelling is occupied so long as it is being used as a residence.
“At” an inhabited dwelling means that you shot the firearm directly at the dwelling or close enough to it so that the risk of someone being injured was high. This conduct exhibits a willful disregard for the safety of others. You may be convicted under this statute if you fired a weapon at people standing outside an occupied dwelling.
The statute does not apply if you fire a gun while inside an occupied car or dwelling, though it is applicable if you are in a dwelling and you fire shots at the house or dwelling next door or even above, below or next to you should you be in an apartment unit6.
There are a few defenses available to anyone charged under PC 246:
A common defense that is used is one of self-defense. As a defendant, you have the burden of proving each of the elements in order to be exonerated:
- You had the reasonable belief that you or someone else was in imminent danger of suffering physical harm or of battery (offensive touching)
- You had the reasonable belief that firing a gun was necessary to protect yourself or the other person from imminent harm
- You used no more force than necessary to defend yourself
If someone is menacing or threatening you or someone else, such as brandishing a knife or heavy object and coming at you or the other individual, and you fire a gun in their direction that enters or comes very close to an inhabited dwelling or occupied car or building, you may have a legitimate claim of self-defense.
You may lose this defense if the force you used was excessive. For instance, if the person dropped the weapon and fled but you continued firing at them and your shots entered or come in close proximity to an inhabited dwelling or occupied car or building, or hurt someone, then the DA could argue that the imminent threat no longer existed.
This generally means that you fired the weapon by accident or had no knowledge that the firearm was loaded. If you did know the gun was loaded and decided to fire it anyway at the inhabited dwelling or occupied car or building, then you did display malicious intent.
You have to be identified as the shooter. A disgruntled family member or friend could falsely accuse you. Police may have you tested with GSR or gunshot residue analysis to determine if you did fire a weapon, though this does not necessarily mean that you fired it at either an inhabited dwelling or occupied structure or car.
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
- Or, 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
- If you are not a US citizen, you face the potential of deportation as this is a crime of moral turpitude
- If you already had a strike on your record, a conviction here automatically doubles your sentence since this is a violent felony. If you had two strikes, you will be sentenced to 25 years to life.
A sentence under Penal Code 246 can be enhanced under the following scenarios:
If you fire a gun at an inhabited dwelling or occupied building or vehicle and someone is struck and suffers great bodily injury or is killed, then you face 25 years to life in state prison along with whatever the court sentences you for violating the statute. The enhancement is to be served consecutively, meaning that once your sentence of 3, 5 or 7 years under PC 246 is completed, you then begin serving the 25 years to life.
If you fired a gun at an inhabited dwelling or occupied building or car at the direction of, for the benefit or while associated with a gang, you face an additional 2, 3 or 4 years under PC 186.22, the gang enhancement statute.
Firing a gun can result in other firearms violations if all elements of PC 246 are not met.
You can be convicted of this “wobbler” offense, meaning it can be charged as a misdemeanor or as a felony, if the following conditions are met:
- You willfully or intentionally fired or discharged a firearm
- You did so in a grossly negligent manner
- And did so that someone was at risk of injury or death
This offense would be applicable to nearly any scenario in which you intentionally fired the weapon, knowing it was loaded, while in an inhabited area7. This would include firing it in the air outside your suburban home or at a party. There has to be some degree of danger to someone when you purposely fired the weapon.
As a misdemeanor, you face up to one year in county jail and/or a fine up to $1000. As a felony, you could be incarcerated in county jail for 16 months, 2 or 3 years.
You can also be charged with a misdemeanor for firing a BB or pellet gun if it was done so willfully and in a grossly negligent manner.
You may face serious assault charges if you used a firearm while intending to inflict force upon another person or the application of force. This includes pistol whipping someone or shooting at them but not necessarily requiring that a bullet strike them.
This is a “wobbler” Offense. If convicted as a misdemeanor, the court can impose up to one year in county jail and/or a fine of up to $1000. As a felony, you could be incarcerated in state prison for 2, 3, or 4 years and a fine up to $10,000 for using a generic firearm.
But if a semiautomatic weapon was used, the sentence is 3, 6 or 9 years. If it was an assault weapon, machine gun or .50 BMG rifle, it is 4, 8 or 12 years.
If you intended to kill someone but failed in doing so, you could be charged with attempted murder. Besides having the intent, you must have taken at least a direct step toward accomplishing it. This can be easily met when the defendant discharges a firearm into inhabited dwelling or occupied building or motor vehicle with the intent to kill someone.
You can be convicted of this even if the firearm jammed since you had the requisite intent and the present ability to commit the crime. You also commit the offense when you fire indiscriminately into an occupied building or car or inhabited dwelling, believing that someone was there.
PC 664 addresses the sentence and penalties for an attempted crime. Attempted murder is always a felony, though it can be charged in the first or second degree.
- First degree attempted murder involves premeditation. You face life in prison with the possibility of parole and a fine of up to $10,000. If the attempt was against a peace officer, firefighter other person protected by statute, there is a 15-year mandatory minimum prison sentence.
- Second degree attempted murder lacks the willful or premeditated element. If convicted, you face 5, 7 or 9 years and a fine up to $10,000.
In the context of firing the gun within the context of PC 246 and attempting to murder someone, you face a sentencing enhancement under PC 12022.53. The enhancement is 10 years for use of a firearm, 20 years for firing it, and 25-years to life if you killed someone or caused great bodily harm. These are imposed consecutively so that the sentence begins after you serve your time for Attempted Murder and for shooting at an inhabited dwelling or occupied building or car.
A conviction is also a strike offense.
Felon with a Firearm—PC 29800
If you commit a gun offense, including PC 246, and you have a felony conviction on your record, even if it was expunged, you have committed another felony called “Felon with a Firearm” by the act of merely possessing a firearm in any manner. If convicted, the court may impose a sentence of 16 months, 2 or 3 years. This is served concurrently with any sentence you receive under PC 246 or any other gun crime.8
Drive-by Shooting-PC 26100
Discharging a firearm from a motor vehicle is a “wobbler” and may be charged as a misdemeanor or felony. A misdemeanor offense has a sentence of up to one year in jail. If you are charged with a felony from having fired from a car into an inhabited dwelling with no one present for example, you may face from 16 months to 3 years. However, if you fire the weapon into an occupied vehicle or at a person, you will be charged with a felony that carries 3, 5 or 7 years in state prison.
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- Calcrim 960: 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).]: [↩]
- A firearm is not an air rifle or BB gun, but one in which a projectile is discharged or expelled through the barrel by the force of an explosion or other form of combustion. Firearm Deﬁned. Pen. Code, § 16520. [↩]
- Malicious intent refers to conduct whereby you purposely wanted to injure, annoy, threaten or harass someone. Malicious Deﬁned. Pen. Code, § 7(4); People v. Watie (2002) 100 Cal.App.4th 866, 879 [124 Cal.Rptr.2d 258] [↩]
- To be “inhabited,” means that the structure is used as a dwelling or home, regardless if anyone is inside or not. This includes a camper or even a car equipped so that someone can live there. It ceases to be a dwelling if the occupants show evidence that they did not intend to return to the dwelling at any time. [↩]
- Motor Vehicle Deﬁned. Veh. Code, § 415(a) – A “motor vehicle” is a vehicle that is self-propelled. (b) “Motor vehicle” does not include a self-propelled wheelchair, motorized tricycle, or motorized quadricycle, if operated by a person who, by reason of physical disability, is otherwise unable to move about as a pedestrian. [↩]
- “[T]he ﬁring of a pistol within a dwelling house does not constitute a violation of Penal Code section 246.” (People v. Stepney (1981) 120 Cal.App.3d 1016, 1021 [175 Cal.Rptr. 102] [shooting television inside dwelling].) However, shooting from “inside [an] apartment . . . in the direction of the apartment below” is a violation of section 246. People v. Jischke (1996) 51 Cal.App.4th 552, 556 [59 Cal.Rptr.2d 269]. [↩]
- Grossly negligent discharge of a ﬁrearm pursuant to Penal Code section 246.3(a) is a lesser included offense of discharging a ﬁrearm at an occupied building. People v. Ramirez (2009) 45 Cal.4th 980, 990 [89 Cal.Rptr.3d 586, 201 P.3d 466]. [↩]
- Concurrent Sentence for Firearm Possession – If a prior felon arrives at the scene already in possession of a ﬁrearm and then shoots at an inhabited dwelling, Penal Code section 654 does not preclude imposing sentences for both offenses. People v. Jones (2002) 103 Cal.App.4th 1139 [127 Cal.Rptr.2d 319]. [↩]