California “Negligent Firearm Discharge” Laws – Penal Code 246.3 PC
In California, negligent discharge of a firearm is charged under penal code 246.3 pc making it unlawful to intentionally discharge a firearm with gross negligence which may result in injury or death. It is a described as a “wobbler” – allowing the prosecutor to charge you with either a felony or misdemeanor.
In order to be found guilty of PC 246.3, the prosecutor must prove:
- You intentionally shot a firearms;
- You shot with gross negligence;
- You acted in a reckless way that created a high risk of death of great bodily injury; and
- A reasonable person would have known that acting in that way would create such risk;
- The shooting could have resulted in injury or death of another;
- You were not acting in self-defense or defense of another.
Legal Defenses to PC 246.3
- Actual Belief: Actual belief that the weapon is not loaded negates the mental state requirement for this offense. In other words, a defendant who believed that the firearm was unloaded, cannot be guilty.
- Self-Defense: Self-defense serves as an absolute defense or if you were defending another from suffering bodily harm or death. Several factors play a pivotal role in arguing a self-defense claim including, your relationship dynamics with the other, the size of the other person, and what your belief was at the time the firearm discharged. Self-defense is always measured under the “reasonable person” test.
- Intentional: PC 246.3 requires that the defendant intentionally discharge the firearm. However, if a firearm can discharge accidently or negligently – i.e., dropping a gun on the ground, malfunctioning, or jolting of the weapon caused it to discharge.
- Ordinary Negligence: Negligent discharge requires the defendant conducts to be grossly negligent. Moreover, it must involve more than ordinary negligence, inattention, or mistake in judgment. Accordingly, it is a defense if your conduct was merely ordinary negligence, accident, or lapse in judgment.
Punishment for Negligent Discharge of a Firearm
As noted above, this crime can be alternative charged as either a felony or misdemeanor. A felony conviction is punishable in the county jail for 16 months, 2, or 3 years. A misdemeanor conviction carries up to one (1) year in the county jail.
If the device was a BB-gun, then you would be charged under PC 246.3(b) which is a misdemeanor only carrying up to 1 year in the county.
Contact Us to Schedule a Free Consultation
If you have been charged or are under investigation for negligent discharge of a firearm under penal code 246.3, then contact the Law Offices of John D. Rogers to schedule a consultation with an experienced Newport Beach criminal defense attorney. Give us a call for a confidential case evaluation concerning your rights and defenses.
- Assault with a Deadly Weapon – Penal Code 245(a)(1) PC
- Assault with a Firearm – Penal Code 245(a)(2) PC
- Brandishing a Weapon – Penal Code 417 PC
- Assault – Penal Code 240 PC
- Battery – Penal Code 242 PC
 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.”)
 See CALCRIM No. 970: https://www.justia.com/criminal/docs/calcrim/800/970/
 “A defendant who believed that the firearm he or she discharged was unloaded…would not be guilty of a violation of section 246.3.” (People v. Robertson (2004) 34 Cal.4th 156, 167 [citing In re Jerry R. (1994) 20 Cal.App.4th 1432, 1438-1439, 1440].)