California “Negligent Firearm Discharge” Laws – Penal Code 246.3 PC

May 15, 2015

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.[1] 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:

  1. You intentionally shot a firearms;
  2. You shot with gross negligence;
    1. You acted in a reckless way that created a high risk of death of great bodily injury; and
    2. A reasonable person would have known that acting in that way would create such risk;
  3. The shooting could have resulted in injury or death of another;
  4. You were not acting in self-defense or defense of another.[2]

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.[3]
  • 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.

Related Offenses



[1] 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.”)

[2] See CALCRIM No. 970:

[3] “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].)

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