Introduction

Possessing a firearm is a federal Constitutional right in the U.S. since there are numerous reasons to possess a gun, including protecting yourself, your loved ones, and your property.

See Second Amendment of the U.S. Constitution.

However, this right comes with responsibility and restrictions on how and when you can use the weapon. For example, it is a criminal offense to negligently discharge a firearm even if no person is injured or killed, provided there is a likelihood of harming an individual.

See Negligent Discharge of a Firearm or BB Device in Grossly Negligent Manner (California Penal Code section 246.3: California Penal Code section 246.3).

See also California Criminal Jury Instructions (“CALCRIM”) – “Shooting Firearm or BB Device in Grossly Negligent Manner -- Pen. Code § 246.3”: CALCRIM Number 970.

A criminal charge may entail severe penalties such as incarceration, deportation, fines, and the loss of the right to possess a gun. Gun and weapons charges are not taken lightly in California.

Defining California Penal Code § 246.3

The definition of P.C. § 246.3 consists of the facts of the offense that the prosecution team must prove before you can be convicted of this crime. These elements of the crime include:

  • The defendant intentionally shot their BB device or a firearm;
  • The accused shot the device or firearm with gross negligence; and
  • Their shooting could lead to a person’s death or injuries.

Most negligent discharge of firearm charges do not involve the intent to injure or kill a person. You can be accused of criminal activity if you:

  • Fire your gun into the air while celebrating a victory;
  • Fire the gun at a party to show off the new weapon;
  • Shoot the gun at trees or other objects with pedestrians passing by;
  • Leave your loaded gun where your minor child finds and discharges it; and
  • Engage in target practice with minor children nearby.

See also Discharging a Firearm from a Moving Vehicle (“Drive-By Shooting”) (California Penal Code section 26100);

Personal Discharge of a Firearm During the Commission of a Serious Felony (12022.53(c): California Penal Code section 12022.53(c)); and

Child Endangerment (California Penal Code section 273a).

Defining “Intentionally”

The defendant cannot be convicted of this crime if they accidentally pull the gun’s trigger.

The judge cannot convict you of the offense if you believe the gun was unloaded. The belief does not form your intent to violate the law.

A “BB Device” or a “Firearm”

A BB device is an instrument that can expel a projectile like a pellet or BB via spring action, air pressure, or gas pressure force.

On the other hand, a firearm is a device or weapon that can expel or discharge a projectile via a barrel using an explosion force.

Your Shooting Could Have Caused Death or Injury

Firing a firearm becomes a negligent discharge if your conduct could have led to death or injuries. Provided it is possible to cause such harm, you can be convicted of the crime even when it was unlikely harm would result.

For example, the court deems an act a negligent discharge if the defendant fires warning shots or fires into the air.

“Gross Negligence”

Being negligent is not in and of itself adequate to result in conviction for this crime. You must have acted with gross negligence. Gross negligence is proven if all the statements below are correct:

  • You acted recklessly in such a manner that resulted in the possibility of great bodily injury or death;
  • A reasonable individual would have been aware that acting so would lead to the risk.

See also Personal and Intentional Discharge of a Firearm Causing Great Bodily Injury or Death (California Penal Code section 12022.53(d)); and

Inflicting Great Bodily Injury (GBI) (California Penal Code section 12022.7).

Gross negligence goes beyond mistakes in judgment or ordinary carelessness.

You act with gross negligence when you behave differently from how a rational, reasonably cautious individual would behave in similar circumstances, and your conduct is indifferent to your action’s consequences or disregard for human life.

Great bodily injuries are significant physical injuries. The injury must be greater than moderate or minor harm.

See also Assault by Means Likely to Produce Great Bodily Injury/Aggravated Assault (California Penal Code section 245(a)(4)).

Penalties for Violating California P.C. §  246.3

Violation of P.C. § 246.3 is a “Wobbler” (California Penal Code section 17(b)). The prosecutor can charge you with either a felony or a misdemeanor depending on the following:

  • Your criminal history; and
  • Your case circumstances.

You will face a misdemeanor if you commit the crime using a BB device instead of a firearm. If charged with a misdemeanor, you will face the following penalties:

  • Summary (misdemeanor) probation;
  • Up to a one-year county jail sentence; and/or
  • $1,000 in fines.

The penalties and consequences for P.C. § 246.3 as a California felony include the following:

  • Serving sixteen, two years, or three years in jail per the state’s realignment program;
  • $10,000 in fine; and/or
  • Formal (felony) probation.

See California Realignment (A.B. 109).

Sentencing Enhancements

Most sentencing enhancements for gun and weapon offenses do not apply to a Penal Code section 246.3 conviction.

For example, the “10-20-life use a gun and you are done” laws only apply to the felonies highlighted in the rules, which do not involve P.C. § 246.3.

See 10-20-Life “Use A Firearm and You Are Done'' Law (California Penal Code section 12022.53).

Additionally, enhancement for the personal use of a firearm during a felony commission does not affect this crime. It only affects crimes that do not necessarily involve the use of firearms.

See Personal Use of a Dangerous Weapon During the Commission of a Felony (California Penal Code section 12022);

Personal Use of a Firearm During a Felony (California Penal Code section 12022.5); and

Personal and Intentional Discharge of a Firearm Causing Great Bodily Injury or Death (California Penal Code section 12022.53(d)).

Nevertheless, you can face a much harsher sentence such as a Gang Enhancement (California Penal Code 186.22).

See also “Carrying Firearm: Active Participant in Criminal Street Gang -- Pen. Code §§ 25400(c)(3), 25850(c)(3)”: CALCRIM Number 2542.

The court will impose the gang enhancement per P.C. § 186.22 if:

  • You committed or attempted to commit an offense concerning, or that benefits, your criminal street gang; and
  • When you engaged in criminal activity, you intended to help, promote, or further gang-related behavior.

For the sentencing enhancement to apply, the prosecutor much convict you of the baseline crime. That means the prosecution team should establish every fact of the crime plus the elements highlighted above. In this case, you will face an additional (and consecutive) two, three, or four years in state prison.

“Three Strikes” Law

P.C. § 246.3 is deemed a “serious felony” per California’s so-called Three Strikes law.

If the defendant has been previously convicted of a California Strike offense and is convicted of a second Strike, they will receive double the typical maximum sentence for the second crime.

If they have two previous Strike convictions and are convicted of a third, they will face an automatic twenty-five-years-to-life imprisonment.

See Strike Offense (California Penal Code section 667(a)&(b); (“Violent Felonies”): California Penal Code section 667.5(c); (“Serious Felonies”): California Penal Code section 1192.7(c));

Third Strike (Penal Code section 667(e)(2); and

Strike Sentencing Enhancement (California Penal Code section 1170.12).

Your Negligent Discharge Conviction Can Result in Adverse Immigration Consequences

Like many guns and weapons crimes, P.C. § 246.3 is a deportable offense. If the accused is an immigrant and pleads guilty or is convicted of the crime, they could be deported. It does not matter how long they have lived in the U.S. or how well-established their life is here.

That is why it is essential to be represented by an experienced defense attorney who understands California criminal law and immigration law. Your lawyer will hopefully persuade the prosecutor to at least reduce your criminal charge to a non-deportable offense.

Fighting the Negligent Firearm Discharge Case

In fighting this crime, you require a knowledgeable defense attorney, who will be intimately familiar with California criminal law, including all applicable legal defenses and plea bargain strategies. Defenses to this crime include:

You Acted in Defense of Self or Others

The jury should not convict you of P.C. § 246.3 if you acted in defense of yourself, your property, or another person.

See “Right to Self-Defense or Defense of Another -- Non-Homicide”: CALCRIM Number 3470.

See also “Right to Self-Defense: Mutual Combat or Initial Aggressor”: CALCRIM Number 3471; and

“Possession of Firearm by Person Prohibited by Statute: Self-Defense”: CALCRIM Number 2514.

However, this legal strategy is only effective if all the statements below are correct:

  • The defendant believed that they or another person was at impending risk of sustaining bodily injuries or death;
  • The defendant reasonably thought they should have discharged a firearm to protect against the danger; and
  • They applied only that amount of force reasonably essential to protect against the imminent danger.

You Thought the Firearm was Unloaded

One of the crime's elements is that you intentionally fired the gun. It means you should have also been aware that you or someone else had previously loaded it.

See, e.g., “Carrying Loaded Firearm -- Pen. Code § 25850(a)”: CALCRIM Number 2530);

“Carrying Loaded Firearm: Not Registered Owner -- Pen. Code § 25850(c)(6)”: CALCRIM Number 2545; and

“Carrying Concealed Firearm: Not Registered Owner and Weapon Loaded -- Pen. Code § 25400(c)(6)”: CALCRIM Number 2546.

Depending on your case circumstances, it can be challenging for the prosecution team to establish that you were aware your weapon was in fact loaded. For example, perhaps you forgot the firearm was loaded, or that it belonged to your relative or a friend who had actually loaded it.

The Shooting Did Not Cause the Possibility of Injuries or Death

You can only be convicted of this crime if there is a likelihood of the gun killing or injuring an individual.

It depends on where and when the incident occurred and the number of persons around -- aspects that the prosecution must prove beyond a reasonable doubt.

Accidental Discharge of the Firearm

You cannot be sentenced if you fired the weapon accidentally. The prosecutor must prove that you did so intentionally, even if they do not have to establish you acted maliciously or that you intended to injure a person or destroy property.

See CALCRIM Number 3404 (“Accident -- Pen. Code § 195”): CALCRIM Number 3404.

Typically, prosecutors prove the intent using witness testimonies or the defendant’s own statements.

Related Crimes

Various crimes can be prosecuted instead of or alongside P.C. § 246.3, including:

Shooting at an Inhabited Dwelling or Occupied Car (California Penal Code section 246)

You violate P.C. § 246 when you discharge a firearm at an occupied car, building, or inhabited house.

This is a California felony, carrying either:

  • Six months or a year in jail, or
  • Three, five, or seven years in California state prison.

See “Shooting at Inhabited House or Occupied Motor Vehicle -- Pen. Code § 246”: CALCRIM Number 965.

See also “Shooting at Uninhabited House or Unoccupied Motor Vehicle -- Pen. Code § 247(b)”: CALCRIM Number 966; and

“Shooting at Unoccupied Aircraft -- Pen. Code § 247(a)”: CALCRIM Number 967.

Since P.C. § 246 carries more severe penalties and consequences than Penal Code section 246.3, it is common for defense attorneys to attempt to persuade prosecutors to reduce P.C. § 246 criminal charges to the latter.

See Negligent Discharge of a Firearm or BB Device in Grossly Negligent Manner (California Penal Code section 246.3); and

CALCRIM Number 970 (“Shooting Firearm or BB Device in Grossly Negligent Manner -- Pen. Code § 246.3”): CALCRIM Number 970.

Brandishing a Weapon

P.C. § 417 makes it illegal to exhibit or draw a gun rudely or angrily during an argument, quarrel, or fight.

See Brandishing Firearm or Deadly Weapon: Misdemeanor (California Penal Code section 417(a)(1)&(2));

 “Brandishing Firearm or Deadly Weapon: Misdemeanor -- Pen. Code § 417(a)(1)&(2)”: CALCRIM Number 983; and

“Brandishing Firearm: Misdemeanor - Public Place -- Pen. Code § 417(a)(2)(A)”: CALCRIM Number 984.

This is a California misdemeanor carrying three to six months in county jail.

See, e.g., Los Angeles County Men’s Central Jail;

Women's Central Jail Los Angeles County -- Century Regional Detention Facility; and

Ventura County Jail.

Sometimes, you could face both P.C. § 246.3 and P.C. § 417 charges. It could happen if you were arguing with somebody else, pulled out your firearm, and fired warning shots in the air.

Felon with a Firearm (California Penal Code section 29800)

If you are convicted of P.C. § 246.3 and have a previous felony on your criminal record, you risk facing P.C. § 29800 charges.

P.C. § 29800 imposes penalties if you have a prior California felony and knowingly receive or possess a gun. It attracts an additional sixteen months, two years, or three years in county jail.

If convicted of a prior felony, P.C. § 29800 will hinder you from legally possessing a gun following conviction.

Expunging Your Criminal Charges (California Penal Code section 1203.4)

A person convicted of a P.C. § 246.3 violation nevertheless qualifies for an expungement under P.C. § 1203.4 since no prison time will have been served.

While an expungement does not literally erase your criminal record, it does limit who can see it when conducting a background check. Therefore, you can state on your employment, rental, or educational application that you do not have a previous conviction.

See also Early Termination of Probation (California Penal Code section 1203.3); and

Felony Reduction to a Misdemeanor (California Penal Code section 17(b)).

However, you will have to reveal the conviction and its expungement when:

  • Applying for your California professional license;
  • Running for a public office; or
  • Applying for your contract or license with the State Lottery Commission.

Please note, however, that expungement does not automatically restore your right to own or possess a gun.

Expungement Qualifications

You are eligible for an expungement provided you satisfy the following:

  • You were not sentenced to state prison;
  • You have completed all your probation and sentence conditions;
  • You do not currently have a pending criminal charge; and
  • You have not violated any other law.

The Plea Bargaining Process

Plea bargaining is the negotiation procedure between your criminal defense and the prosecution. The prosecution aims to obtain a conviction with sufficient penalties without trial. On the other hand, the defense lawyer works to secure the defendant’s most favorable case outcome.

Like any negotiation, plea bargaining involves making offers and counter-offers. What each party gives up is driven by the strength of the prosecution’s case against you; specifically:

  • If the prosecutor’s case against you is strong, they are unlikely to accept a significantly reduced plea; or
  • If their case is weak, your defense attorney will have the leverage to secure a favorable plea deal.

Typically, plea bargaining starts after the arraignment (the initial court hearing after an arrest where you would plead not guilty). Agreements can be made at any phase of the criminal justice process.

Most deals are made during or shortly after the preliminary hearing (assuming you’re charged with a felony) after both parties have had time to investigate and reach some sort of understanding of your criminal case.

Prosecutors and judges typically encourage plea deal negotiations aggressively due to the following reasons:

  • The primary rationale of judges and prosecutors offering plea bargains is moving along crowded calendars. They do not have time to handle all cases that come through the door.
  • A defendant accepting a plea bargaining is an assured conviction.
  • A plea bargain allows the prosecutor to protect government informants, especially those with criminal histories. If your case goes to trial and the informant testifies, your defense lawyer can force the prosecution to reveal the informant’s identity, after which you attorney can impeach him or her with their previous criminal record.
  • Victims often benefit from plea bargains, mainly when he or she wants to avoid testifying and facing the defendant at trial (or at the prelim).

The negotiations can be either informal or formal. They can occur in the courtroom or the District Attorney’s Office Or, if you’re charged with a misdemeanor, possibly the City Attorney’s Office). They can also happen by email or over the phone.

See, e.g., Los Angeles County District Attorney's Office (DA’s Office); and

Los Angeles City Attorney's Office (CA’s Office).

They can be settled quickly or take longer. Some negotiations take until the trial’s eve.

Generally, an unrepresented defendant is highly likely to, at best, obtain an offer that does not vary much from their original charge. Engaging a skilled and reputable defense lawyer is paramount, especially when facing a negligent discharge of a firearm felony charge.

Once the parties agree, a plea deal is formally turned into a binding agreement. There are two main types of plea bargains:

  • Sentence bargaining — The negotiations will focus on the sentence terms. You can offer to plead guilty to the filed criminal charges if the prosecution convinces the judge to impose a reduced sentence.
  • Charge bargaining — You bargain over the filed charges by agreeing to plead guilty to a lesser charge. It is common in wobbler crimes. A felony conviction obviously carries numerous collateral and more serious consequences than a misdemeanor.

After agreeing, the judge will cancel your trial, as well as other other pre-trial hearings. Then your case will proceed to a sentencing hearing. Thereat, the judge will ensure on the record that you understand your rights and the plea agreement’s implications. Then he or she will approve your deal after determining that you entered into the deal voluntarily and knowingly.

Should You Plead Guilty or Proceed to Trial

Given the stress of a conviction, it can be tempting to accept the prosecution's initial offer. While it is sometimes wise to accept the plea bargain, just as with all negotiations, you should ensure you obtain the most favorable deal. Here are factors to consider first:

  • Have you consulted with a defense attorney? A legal counsel is obviously more experienced with prosecution trends and possible sentences than you are. Moreover, they can review the proof against you and determine whether there are ways to fight criminal charges. The prosecutor will be willing to offer better deals if they realize that their case is weak to avoid losing via an acquittal at trial (or via the judge granting a dispositive motion).

See Motion In Limine (California Evidence Code section 350; California Evidence Code section 352);

Motion to Dismiss (California Penal Code section 995); and

Motion to Suppress Evidence
(California Penal Code section 1538.5).

  • Is the offer in your best interest? The prosecutor is not your friend and is not interested in representing your best interests. Their job is not to advise you to make decisions. It is in their job description to obtain as many convictions as possible.

Los Angeles Criminal Lawyer Ninaz Saffari