Posted on May 15, 2015

California P.C. § 246.3: Negligent Discharge of a Firearm

Negligent discharge or a firearm is a “wobbler” offense which means the prosecutor holds discretion on whether to charge someone with a felony or misdemeanor. Factors the prosecutor considers are one’s prior criminal record and the severity of the current offense. Fortunately, if one is convicted of a felony, they may be eligible to reduce their felony to a misdemeanor pursuant to P.C. § 17(b) upon successful completion of probation.

Prosecuting someone for negligently discharging a firearm is more burdensome and challenging than one would think. For instance, the prosecutor must prove that someone acted with gross negligence versus ordinary negligence which is the usually crux of the case. Most prosecutors gain their evidence through incriminating statements proffered by the accused to law enforcement. Thus, one should avoid all communication with law enforcement unless a criminal defense attorney is present.

There are times where an arrest or act of discharging a firearm was an accident or a misunderstanding which resulted in an arrest. In that instance, the best approach to defeating charges is early intervention by an Orange County Criminal Defense Lawyer. An attorney may have the ability to speak with the prosecutor prior to charges being filed in court in an effort to reject the case completely or resolve the matter via informal diversion.

Defined by California Statute

In California, negligent discharge of a firearm is governed by P.C. § 246.3 which provides, “A 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.”

Elements of the Crime

According to CALCRIM 970, in order for someone to be found guilty of negligently discharging a firearm, the prosecutor must prove each element beyond a reasonable doubt:

1. Defendant intentionally shot a firearm

2. Defendant did the shooting with gross negligence

3. The shooting could have resulted in death or injury to another

4. Defendant did not act in self-defense

What are the Legal Defenses?

• You reasonably believed the firearm was not loaded

• You were reasonably acting in self-defense to prevent injury

• You were not acting with gross negligence but instead with ordinary negligence

• The shooting could not have resulted in death or great bodily injury to another

What is “Gross Negligence”?

Gross negligence is a loosely defined term but according to CALCRIM 970, it means the act must involve more than ordinary negligence, inattention, or mistake in judgment. As person acts with gross negligence when 1) he or she acts 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, a person acts with gross negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

What is the Punishment?

The consequences if convicted under this statute depend on whether one was convicted of a misdemeanor or a felony. If convicted of a felony, one faces a state prison sentence. However, if convicted of this offense as a misdemeanor, the consequences are:

• Up to 1 year in the county jail

• Court Ordered Probation Supervision

• Court Fines and Fees

• Counseling / Anger Management

• Destruction of the Firearm

• Victim Restitution

• Firearm Restriction Ban


Dan was cleaning out his storage unit in Los Angeles. When he was moving a box a firearm fell out of the box and discharged upon ground impact. The LAPD were called to the scene and Dan was arrested for negligent discharge or a firearm. In this case, the crux of the legal argument will whether Dan acted with ordinary negligence or gross negligence – required by statute. Since Dan’s conduct is more associated with ordinary negligence as he was only moving boxes, and did not exercise conduct equivalent to recklessness, he will likely be found not guilty.

Contact Us to Schedule a Free Case Evaluation

If you have been arrest or charged with negligent discharge of a firearm under PC 246.3, then contact an experienced Orange County Criminal Defense Attorney at the Law Offices of John D. Rogers. Call 877-888-9820 to schedule a free confidential consultation concerning your rights and defenses.

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