Negligent Discharge of a Firearm

Penal Code section 246.3 makes it unlawful to “willfully discharge a firearm in a grossly negligent manner which could result in injury or death to a person.” A firearm is any device wherein a projectile is discharged from a barrel by force. That definition includes BB guns.

To be guilty of this offense, you must have intentionally discharged the firearm and done so with gross negligence. Acting with gross negligence means that the conduct exhibited a disregard for human life or the consequences of the act. The offense does not require that there is an actual injury or death, only that the conduct could pose that danger. The tradition of shooting guns in the air on New Years Eve, for example, would be a violation of this law unless the shooting took place in an area where no one else was around. In fact, Penal Code section 246.3 was enacted to address exactly that dangerous tradition. (People v. Robertson (2004) 34 Cal.4th 156, 167.)

A key element to this crime is intentionality. If you accidentally pulled the trigger, you did not intend to discharge the firearm. Similarly, if you believed the firearm was unloaded, you did not have the intent to discharge a projectile from the firearm. As you might imagine, both defenses could be hard to prove but there are instances where intentionality is absent. For example, a person inexperienced with firearm handling may discharge a firearm by mishandling the weapon. Or a firearm may fire due to a malfunction or defect.

Example

Roger and Trevor were on a hunting vacation. They were sitting at the campfire drinking beer, perhaps one beer too many. Roger had his hunting rifle sitting across his lap. As they were discussing Roger’s rifle, Trevor leaned over to grab it from Roger to inspect it. Because Trevor was a bit inebriated, he wasn’t very careful when he grabbed the gun and accidentally caused the gun to discharge lodging a bullet in Roger’s leg. It can certainly be said that Trevor was grossly negligent, but his pulling of the trigger was not intentional. Did Trevor violate this law? A strong and viable defense is available and Trevor’s Orange County negligent discharge of a firearm defense attorney will argue for a dismissal of the charge on the ground that Trevor’s act was not intentional.

Defenses

• You did not intend to discharge the firearm (Example: You pulled the trigger on a gun that you sincerely believed was unloaded.)
• You were not grossly negligent (Example: You were shooting at cans in a wide, empty, and open field not realizing another person was nearby. There was another person, but out of your sight, and that person caught one of your stray bullets in the shoulder. You were not grossly negligent because you could not have reasonably anticipated that another person was in the area.)
• The discharge could not have resulted in injury or death. (Example: The same as above but there was no one else around. However, a police officer patrolling the area happens to hear the shooting and goes to investigate. The officer then arrests you for violating Penal Code 246.3.)
• Self-defense. (Example: You discharged the weapon in the air to scare off an intruder in your space who you reasonably believed posed an imminent danger to your safety.)

Penalties

This offense is a wobbler, meaning it can be prosecuted as a misdemeanor or a felony. If the firearm was a BB gun, it is always prosecuted as a misdemeanor; otherwise, the prosecutor will look at the circumstances or the offense and the criminal history of the offender when determining how to charge the crime. Many prosecutors will charge wobblers as a felony simply to put the prosecution in a better position in plea negotiations. An experienced criminal defense attorney can often secure a minimum sentence of informal probation on this charge; however, the potential penalties can include up to three years incarceration, if charged and convicted as a felony.

A misdemeanor conviction carries a maximum sentence of one year in jail and/or up to a $1,000 fine. A felony conviction carries a sentence of 16 months, two years, or three years incarceration and/or up to a $10,000 fine.

CONTACT ORANGE COUNTY NEGLIGENT DISCHARGE OF A FIREARM

Attorney William Weinberg has defended his clients facing firearm-related charges for over 25 years. He will vigorously defend you to the full extent of the law. Mr. Weinberg offers a free consultation to review your matter and will advise you of your options. Contact him by calling his Irvine office at 949-474-8008 or by emailing him at bill@williamweinberg.com.