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Negligent Discharge of a Firearm (California Penal Code Section 246.3)

It is illegal in California to discharge a firearm or BB gun in a negligent manner that could cause injury or death. The law was created to prevent individuals from shooting a firearm or BB gun into the air during celebrations, events, or festivities. This offense can be prosecuted as a misdemeanor or a felony and may carry a jail sentence.

Prosecution of Negligent Discharge of a Firearm

To convict you of the offense of negligent discharge of a firearm under California Penal Code Section 246.3, the prosecution must prove, beyond a reasonable doubt, that:

  • You willfully fired the firearm or BB gun
  • You fired the gun in a grossly negligent manner, and
  • The discharge could have resulted in injury or death1

The law says that when you act in a grossly negligent manner, you act in a way that a reasonable person would know was reckless and in a way that creates a high degree of risk of injury or death. In order to be convicted of this crime, all three elements must be proven, including that discharge of the gun could have hurt someone else. If you fire a weapon in an area that is so remote that it is reasonable to assume that no persons could be injured or killed by the discharge, then you would not be in violation of California Penal Code 246.3.

Penalties and Sentencing for Negligent Discharge of a Firearm

prison
You may be facing serious jail or prison time

California Penal Code 246.3 violations can be charged as a misdemeanor or felony offenses, dependent on the specific circumstances of your case and any criminal history you may have. If you are convicted on misdemeanor charges, you face:

  • A fine of up to $1,000
  • A sentence of up to one year in county jail
  • Both jail and fine

If you are convicted of a felony, you will face:

  • A fine of up to $10,000
  • A sentence of 16 months, two, or three years in county jail
  • Both fine and jail

Anyone who is convicted of negligent discharge of a firearm faces additional penalties that includes the loss of your ‘right to bear arms’ under the Second Amendment. If you are convicted of a misdemeanor for violating California Penal Code Section 246.3, you will lose your Second Amendment right for 10 years, and you will lose your right to bear arms for the rest of your life. Under California Penal Code Section 667, California’s Three Strike’s Law2, a felony conviction of negligent discharge of a firearm could add a strike to your record. Should you be convicted of any felony in the future, this second ‘strike’ could double any jail or prison sentence. A third strike will automatically enhance your sentence to 25 years to life in state prison.

Defenses for Negligent Discharge of a Firearm

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Self-defense may be a valid argument in your case

There are several defenses that your criminal defense attorney can raise if you are charged with negligent discharge of a firearm under California Penal Code Section 246.3. Some of these defenses include:

  • Self-defense – If you discharged the firearm in self-defense or in defense of another to protect yourself or another from imminent harm, you cannot be convicted of this crime. An example would be if you fired a gun into the air to scare off an animal that was behaving in a threatening manner.
  • No Willful Intent – If you believed the gun was unloaded when you pulled the trigger, then you did not “willfully” discharge your firearm. In this circumstance, you would not be guilty of violating the law.
  • No Risk to Others – If you fire a gun in an isolated area where no harm or injury could come to another person, you should not be found guilty of this crime. However, the court could find that you risked injury to yourself.

Sentencing Enhancements for Negligent Discharge of a Firearm

negligent discharge of a firearm
Negligent discharge of a firearm

The California Felony Murder Rule says that you can be charged with murder if you kill someone during the commission of a felony crime, even if it is accidental. If you negligently discharged a firearm and someone dies because of that discharge, you could face second-degree murder charges under the Felony Murder Rule. California Penal Code Section 190, defines the sentencing for second-degree murder as 15 years to life in a California state prison.3 Under California Penal Code Section 186.224 the sentence for negligent discharge of a firearm can be enhanced if you commit the felony offense for or in connection with, any criminal street gang to “promote, further, or assist in any criminal conduct by gang members.” You shall face an additional five-year prison sentence to be served consecutive to any sentencing for the “serious felony” of negligent discharge of a firearm.

Frequently Asked Questions about Negligent Discharge of a Firearm (California Penal Code Section 246.3)

negligent discharge of a firearm into the air
Negligently firing into the air

Below are the answers to the questions we most receive regarding negligent discharge of a firearm.

  1. I fired a gun into the air during a holiday party. Can I be convicted of negligent discharge of a firearm even if nobody was hurt?

Yes, you could be convicted of this crime if you intentionally fired the gun and not in self-defense, because you may have put the health and lives of those around you at risk.

  1. I discharged a “starter pistol” during the races at a summer camp, but I thought it would just make a noise, I didn’t know it was an actual loaded gun. Can I be convicted for negligent discharge of a firearm?

One of the elements of California Penal Code Section 346.3, is that you willfully or intentionally discharged the firearm. If you thought it would only make a noise and had no idea that it was an actual loaded gun, you did not intentionally discharge the firearm, and you should not be convicted of this crime.

  1. Can I be convicted of negligent discharge of a firearm if I shot a gun into the air to try and stop stray dogs from attacking me or my family?

Discharging a firearm in self-defense or in defense of your family in a situation where you believe you or they could be in serious harm is a legal defense to violating California Penal Code Section 346.3, and you should not be convicted of the crime.

  1. If I fired a gun into the air to try and stop a gang member from committing a crime, can I be convicted of negligent discharge of a firearm?

You will need to have an experienced California criminal attorney review the facts of the case before an answer can be given. If you are associated with the gang or its members, or you fired the gun because a gang member told you to, or if you fired the gun to help a gang member involved in criminal conduct, you may be guilty of negligent discharge of a firearm as well as a sentencing enhancement if you committed the crime to benefit a gang or any of its members. Because of the complexities of this case, and the possible sentence enhancement, it is very important that you speak with a knowledgeable attorney about the specific circumstances so they can help you build a solid defense.

Wallin & Klarich Can Help You Fight Negligent Discharge of a Firearm Charges

negligent discharge of a firearm - criminal attorneys
Our criminal attorneys can help you now.

If you or someone you care about has been accused of negligent discharge of a firearm, contact our experienced criminal defense attorneys at Wallin & Klarich today. With over 30 years of experience, our attorneys at Wallin & Klarich have the skills and knowledge to successfully defend you against serious charges of misdemeanor or felony negligent discharge of a firearm charges. We are committed to providing you with the personal attention you deserve to help you overcome this difficult situation. With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San DiegoRiversideSan Bernardino, Ventura, West Covina and Victorville, our attorneys at Wallin & Klarich are available 24 hours a day, 7 days a week to provide you with the very best legal representation. We will employ every available strategy to help you get the best result possible in your case. Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.


1. http://law.onecle.com/california/penal/246.3.html 2. http://law.onecle.com/california/penal/667.html 3. http://law.onecle.com/california/penal/190.html 4. http://law.onecle.com/california/penal/186.22.html

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