California PC 246.3 makes it illegal to discharge a firearm or BB gun in a way that is likely to cause serious bodily harm or death. According to this law, the discharge is considered gross negligence because it presents a substantial risk to other people's lives. This statute is aimed at protecting the public and dissuading people from discharging firearms or BB guns at random during festivals, festivities, celebrations, or for fun.
As this article will detail below, a conviction for negligently discharging a firearm carries severe consequences. However, if you have skilled legal counsel on your side, you can put forward a defense against the prosecution's case and possibly avert jail time, fines, and a permanent mark on your record. Contact Darwish Law today for legal counsel if you are facing charges of negligent discharge of a firearm in Santa Ana.
California Penal Code 246.3: Negligent Discharge of a Firearm
Willfully discharging a firearm unlawfully in a way that is highly likely to cause harm or the death of someone else is a violation of PC 246.3. Prosecutors are required to prove certain elements under Penal Code 246.3's description of negligently discharging a firearm to win a case against the defendant. Those elements include:
- You deliberately discharged a firearm or BB gun.
- You discharged the firearm with gross negligence.
- Another individual could have been hurt or even killed as a result of the discharge.
Let's take a more in-depth look at these elements.
Deliberately Discharging a Firearm
The element of willfulness is crucial in proving a violation of Penal Code 246.3. For the judge to convict you, you should have discharged the firearm or BB gun on purpose. An accidental discharge does not qualify as a purposeful act under this definition. If you did not intend to discharge the firearm, you cannot be found guilty of what happened.
Unintentional discharge can occur if you were under the impression that the gun was unloaded. This concept implies that you couldn't have had the intention to discharge the gun.
A Firearm or a BB Device
Only firearms and BB guns are covered by Penal Code 246.3. BB devices discharge projectiles, such as pellets or ball bearings, using gas, air pressure, or spring action.
Firearms are devices made to be used as weapons that fire projectiles through barrels with the power of an explosion. Rifles, revolvers, and pistols are a few examples.
It takes more than ordinary negligence to find you guilty of negligently discharging a firearm.
The term "ordinary negligence" is used to describe lapses in judgment, carelessness, and the failure to use the degree of caution that the situation calls for. However, gross negligence is more serious. Your actions involved gross negligence if:
- A logical person would understand that engaging in similar behavior would raise the likelihood of harm.
- You engage in irresponsible behavior that puts others at risk of serious physical harm or death.
An individual is considered to have acted with extreme negligence if their actions deviate from what a reasonable person would have done in the same situation. Therefore, his or her acts amount to a lack of concern for or contempt for people's lives.
Keep in mind that great bodily injury is considered the threshold for injury under Penal Code 246.3. If an injury is severe, meaning it is much worse than a mild or slight injury, then it is considered a great bodily injury.
Even so, an injury isn't required to be serious or permanent to be considered a GBI by the judge. The issue of if or not an injury constitutes a GBI is one for the judge or jury to decide. According to previous judicial rulings, the following constitute great bodily harm:
- Gunshot wounds.
- Broken bones.
GBIs do not include less serious wounds, financial damages, or psychological trauma.
Possibility of Causing Death or Injury
The discharge should have the capacity to cause bodily harm or death. Otherwise, you cannot be found guilty by the court. The term possibility here denotes the likelihood of harm or death. It doesn't automatically mean that there will be a serious injury or fatality as a result. It doesn't matter how unlikely the possibility of death or serious injury was; the judge could still convict you.
As an illustration, if you fire into the sky or fire warning shots, you are not likely to injure or kill anyone because you are not aiming at them specifically. However, the danger remains. It's not the same as shooting your gun while no one is around. The court cannot convict you under this statute when nobody is present.
For instance, Walter is out camping in the woods and has brought his rifle with him. He is awakened by the noises of wolves howling. To protect himself, he grabs his firearm and shoots a few warning shots. After hearing the gunshots, a forest ranger makes his way to Walter's camping spot and then contacts the local authorities to report the incident.
Even though Walter fired the rifle, he isn't guilty of negligently discharging a firearm. Since nobody else was around, it is unlikely that his acts would have caused harm or death to another individual.
Defenses You Can Use Against Claims of Negligent Firearm Discharge
If you want to refute the claims that you discharged a firearm negligently, you can put forward several defenses. Your case's specifics will determine the best line of defense to take. Get out to a qualified lawyer to discuss your case and receive advice on the most effective legal course of action.
Here are some possible arguments your lawyer can make for you:
You Acted to Defend Yourself
The law gives you the right to protect others, or yourself, from immediate harm. As a result, if you fired a firearm negligently but did so in self-defense, you're not guilty of this offense. This argument is only valid when the following conditions are met:
- You had a reasonable belief that either you or another person was about to suffer serious physical harm or inappropriate contact.
- You had a reasonable belief that using a weapon to protect the other individual or yourself from harm was the best course of action.
- You only used force as much as was necessary to protect the other party and yourself from the threat.
No risk of harm or death
If there is no real risk that your acts will cause another person to suffer serious physical harm or death, you have not violated Penal Code 246.3. The jury bases its verdict on the date, time, and place of the purported incident. They also take into account how many individuals are close when determining whether there is a risk of harm or death.
For instance, there is a high risk of harm or death when shooting into a playground at noon. If the firing takes place late at night when nobody is present, the risk becomes less.
Therefore, there is no risk of harm or loss of life when firing a gun when camping alone in the woods. Shooting in a residential area is risky, regardless of whether anyone was in the vicinity at the time.
Skilled defense attorneys will poke holes in the prosecution's case and give your side of the story. The objective is to persuade the jurors that your account of the occurrences is more credible.
You Presumably Thought the Gun Was Unloaded
To intentionally discharge a firearm, you must be aware that it is loaded. Authorities must demonstrate that you were aware that the rifle was loaded. But proving intent could be challenging. The prosecution could prove to the court that you were aware that the weapon was loaded using eyewitness testimony.
Yet, your lawyer could argue that you were unaware the gun was loaded, casting doubt on the prosecutor's case. So, you could fairly infer that your acts did not represent a risk of harm or death if you thought the weapon was unloaded.
False allegations under PC 246.3 are common, particularly in cases involving domestic violence. One party can claim that the defendant negligently fired a weapon to conceal their participation in the case. In addition, most allegations are intended to persuade the court that the accused person is a threat to the well-being of his/her partner or children. Because of this, the courts are more likely to rule in favor of the complainant and award custody.
Criminal defense lawyers carry out their investigations to ascertain the truth. When making false allegations, lawyers look for previous false accusations, a pattern of the complainant making the first move, and fabricated testimony. Lawyers present their investigation findings as proof to the court to persuade them of the defendant’s innocence.
Consequences for Negligent Firearm Discharge
Discharging a firearm negligently is handled as a wobbler crime. Prosecutors determine whether to file for felony or misdemeanor violation charges based on the facts of the case and the defendant's criminal record. However, the legislation gives an exception. For example, negligently discharging a BB gun would be considered a misdemeanor crime.
If you are found guilty of a misdemeanor offense, you could be punished as follows:
- Maximum incarceration for a year.
- Paying a hefty fine of no more than $1,000.
- Summary or misdemeanor probation.
If you are found guilty of a felony offense, you could be subject to the following consequences:
- Spending 16 months, 2 years, or 3 years behind bars as per the State's Realignment program.
- Paying a hefty fine not exceeding $10,000.
- Formal or felony probation.
Assembly Bill 109 which is responsible for the State's realignment program, was enacted into law in 2011 after receiving the approval of California voters. It stipulates that offenders found guilty of nonviolent crimes or less severe offenses spend time in jail rather than get imprisoned.
The court system can impose enhancement of sentences in three circumstances, namely:
- Disputes associated with criminal gang activities, as per California PC 186.22.
- Felony crimes specified under California's 10-20-life firearm rule as per California PC 12022.5 adds ten, twenty, or twenty-five years to life imprisonment for serious felony crimes. California PC 246.3 isn't among them.
- Cases including personal use of firearms in carrying out a felony crime SB 620, adopted in January 2018, authorizes sentence enhancements for defendants who use or own firearms or are participants in committing the crime.
Fortunately, negligently discharging a firearm only carries sentence enhancements under PC 186.22. If you perpetrate a felony crime while engaging in a criminal gang activity or when supporting a gang activity, you would be subjected to the punishments listed in California PC 186.22.
If you are convicted under PC 186.22, your sentencing would be extended to 2, 3, or 4 years.
Three Strikes Law
According to the Three Strikes Law, discharging a firearm negligently is regarded as a serious crime. Therefore, if you're found guilty of a felony crime, under PEN 246.3 violation, it would result in a strike. If a negligent discharge of a firearm is the defendant's first-strike-able crime on his/her record, they would be compelled to serve the sentences imposed by the court.
If a defendant has previously been charged under PEN 246.3, the court would issue a sentence that is twice as harsh if he or she is convicted. If the accused has two prior convictions, he/she could face a sentence of 25 years to a life sentence if he or she is found guilty of a felony under California PEN 246.3.
Consequences of Immigration and Firearm Ownership Rights
The negligent discharge of a gun offense constitutes grounds for deportation. If a foreign national pleads guilty or is convicted of the offense, he or she risks being deported from the U.S. and being tagged as inadmissible. Thus, the accused won't be allowed to enter the United States again.
If you are found guilty of a felony crime, you will forfeit your gun ownership rights. The provisions of PEN 29800 prohibit offenders from purchasing, handling, owning, or possessing firearms. If you infringe the provisions of PC 29800, you run the risk of facing additional penalties and a 3-year prison sentence.
You could also face charges for the following offenses:
Discharging a Firearm at an Occupied Vehicle or an Inhabited Building
If you discharge a weapon into an occupied structure, inhabited residence, occupied car or aircraft, or inhabited property, you would be penalized under California PEN 246. The prosecution should demonstrate the following facts:
- You discharged the firearm on purpose and with malice — Malice is defined as the unlawful intention to harm, annoy, disrupt, or swindle another individual.
- You could have discharged the firearm at either:
- A camper, a residence, or a vehicle that is occupied.
- An occupied aircraft, car, or a structure.
It is important to pay attention to how PEN 246 refers to firing "at." Although it could be assumed that the emphasis is to shoot directly at a target, the legal concept also covers discharging close to the target. The term also includes deliberate contempt for the possibility that the target or those nearby will be hit by the gunshots.
Consequences for a PEN 246 Violation
Firing at an inhabited dwelling or an occupied vehicle carries serious felony charges, including:
- A formal or felony probation.
- Serving 6 months to one year in state jail, or 3, 5, or 7 years of imprisonment.
- A hefty cash fine not exceeding $10,000.
Additionally, the magistrate will issue a sentence enhancement under PEN 186.2 and the State's 10–20–life firearm rule.
Brandishing a Firearm or a Lethal Weapon
It is illegal to display or pull out a dangerous weapon in front of another person in a hostile, threatening, or disrespectful manner. Any action that falls under this category and does not constitute self-defense can be penalized under California PEN 417.
The prosecution needs to demonstrate the following:
- The defendant displayed or pulled a gun in front of someone else.
- The accused drew the weapon in a rude, hostile, or threatening manner.
- The defendant used the weapon in a fight or quarrel.
- The offender didn't respond in self-defense.
California Murder Rule
Before a 2009 decision by the California Supreme Court, a person could face counts of murder if they committed, attempted to commit, or was a key participant in a serious felony offense and:
- Directly murder another person.
- Causes a law enforcement officer to die while performing their duties.
- Aids and abets murder in the first degree with the intent to do so.
Therefore, under the California felony murder rule, you would be charged with murder if you killed a person while executing the crime. If a negligent discharge of the firearm or any other criminal activity led to the death of another individual, the prosecution would accuse you of murder.
Nonetheless, the 2009 court ruling found that negligently discharging a firearm was not an offense to which the California felony murder rule applies. Prosecutors can try to pursue a murder charge under this provision. However, it will undoubtedly be rejected.
How a Professional Lawyer Can Assist You
It takes a lot of work to defend against charges of PEN 246.3 violation. It's crucial to get help as soon as possible. Early legal representation will enable your attorney to analyze the evidence and, if necessary, bargain with the prosecutors to get the charges dropped or reduced. If this doesn't work, your lawyer will defend you in the trial. Finding potential valid arguments and pointing out weaknesses in the prosecutor's case are both elements of the initial evaluation process. Your defense attorney will then devise a successful plan.
Find a Gun and Weapons Offenses Attorney Near Me
If you or a loved one is facing allegations of negligently discharging a firearm, you should seek the services of a seasoned attorney as early as possible. We at Darwish Law in Santa Ana understand that a conviction can have far-reaching effects. Call us at 714-887-4810 for more help with your case.