Discharge of a Firearm at an Occupied Structure

Under Penal Code section 246 it is a felony to discharge a firearm at a home where people live, any building that is occupied, or a motor vehicle or aircraft that is occupied. This statute has several twists and turns and can be charged under a number of varied circumstances. If you have been charged with this crime, an experienced unlawful discharge of a firearm lawyer will be able to parse out the particular facts of your case and may be able to devise a winning defense strategy.

Elements Of The Offense

This offense is committed if you willfully and maliciously discharged the firearm. The offense does not require that any person actually be harmed. Furthermore, the structure is considered an inhabited home, even if it is occupied at the time or not. If someone lives in the structure, even if they have abandoned it for a time but intend to return, the structure is inhabited for the purposes of this statute.

A home, as it applies here, includes not just the home but any garage or other structure attached to the home, as well as motorhomes, camper vans, RVs and so on.

 A motor vehicle is any vehicle that is propelled by a motor.

A firearm is any weapon from which a projectile is discharged from a barrel by force. Thus, a BB gun would be a firearm under this definition.

A person can violate this law even if he or she does not shoot directly at the structure, vehicle, or aircraft. Shots that are fired near enough that it shows a “conscious disregard” for danger to human life that may be in or near the target are a violation of this statute. 

Shooting from inside the structure is not a violation of this statute; however, shooting from inside a structure into another structure – such as shooting through the floor of an apartment into the apartment dwelling below – is.

Willful and malicious means the discharge of the firearm was done on purpose and with the intent to “disturb, annoy, or injure” another person. A genuinely accidental discharge of the firearm would not meet this requirement.


Adam and Natasha decided to terrorize homeless people at a park. Some of the homeless live in camper vans that were parked at the curb alongside the park. As part of their campaign of terror, they sped by the encampment shooting a pistol in the air. Natasha then aimed the pistol at the tires of a dilapidated campervan that appeared to be an abandoned. Fortunately, no one was inside the van at the time, but it was the home to a woman who was visiting others in the encampment when Adam and Natasha showed up. Only the van’s tire suffered damage, and no one was injured.

Natasha’s act violated Penal Code section 246. She shot the gun on purpose at the van and with the intent to annoy another person. If Natasha had not shot at the camper van’s tires, but rather just kept shooting straight in the air, she would have violated other laws, but not section 246. Similarly, if the campervan was indeed abandoned and no one lived in the van, she would have violated the law, but not section 246. Adam is not off the hook either. Although he did not shoot the pistol, he is still an accomplice to Natasha’s act and could be charged on that basis and with conspiracy to commit a felony.


Your Orange County unlawful discharge of a firearm defense attorney may be able to present one or more of the following defenses:

  • The firearm discharged by accident. (For example, if Natasha was just waiving the gun out the window, without firing the pistol, and she genuinely did not intend to discharge it but somehow accidently pulled the trigger. However, Natasha would likely still face the lesser charge of grossly negligent discharge of a firearm.)
  • The shooting was in self-defense. (For example, you get caught in a road rage incident and the driver of the other car aims a gun at you. You, in turn, shoot at the other driver or the car in a reasonable belief that you are in imminent danger from the other driver.)
  • The structure or home was unoccupied and permanently abandoned.
  • The motor vehicle or aircraft was unoccupied.
  • The structure was not attached to the home (for example, a free-standing shed).


Violation of this law is a felony. The penalties can be severe making it that much more important if you are charged with this crime that you hire an attorney who is experienced in defending unlawful discharge of a firearm charges.

Upon conviction, a person can be sentenced to state prison for a period of three, five, or seven years or to county jail for six months to a year. Depending on the circumstances of the crime, particularly when the judge sentences on the lower end, a skilled criminal defense attorney can often secure a term of felony probation in lieu of incarceration.


Attorney William Weinberg For Immediate Help

If you have been charged with the unlawful discharge of a firearm or related crime, Attorney William Weinberg is available for a free consultation. He will carefully review the facts of your case and advise you of your options. Call him at his Irvine office at 949-474-8008 or email him at bill@williamweinberg.com.

Client Reviews
He was open, honest and compassionate (qualities you don't always find in an attorney) and his credentials proved that he is more than qualified to handle this complicated case. JoAnn H.
Not only did [my case] get resolved with great efficiency, [Mr. Weinberg and his team] were very open with me and kept the lines of communication flowing which I appreciated greatly. Ryan T.
There are many things about our conversations that told me that bill was an honest guy and knew what he was talking about. Amy C.