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Penal Code 246.3(a) Negligent Discharge of a Firearm

Feb 28, 2019 | Criminal Law

Pursuant to California Penal Code Section 246.3(a) a person who willfully discharges a firearm in a grossly negligent manner which could cause injury or death is guilty of a public offense.

To Be Convicted of Penal Code 246.3 (a) Prosecutor Must Prove The Following

To convict the defendant in negligent discharge of a firearm the prosecution must prove, beyond a reasonable doubt, the following elements:

  • Defendant intentionally fired the firearm or BB gun
  • Defendant fired the gun in a grossly negligent manner
  • Defendant’s action could have resulted in injury or death of another person

What is Willful Intent?

A person shot the firearm intentionally when he pulled the trigger and knew that the firearm was loaded. In case the gun went off completely by accident and a person reasonable believed that the firearm was not loaded it cannot be a negligent discharge.

What is Gross Negligence?

Gross negligence is more than an ordinary negligence, it means acting so recklessly that any reasonable person can realize that the act is likely to produce great bodily injury or even death. Gross negligence shows a conscious disrespect and indifference regarding the rights and safety of other people. If a person was shooting the weapon in a place where no one was around then he won’t be guilty under Penal Code Section 246.3. Gross negligence happens when a person was shooting the weapon in an area where many people lived and there was a huge chance that his act could possibly cause injury or death.

Use of Firearm or BB Gun in Penal Code 246.3(a) Charges

A firearm is any device which is used as a weapon from which a projective is discharged. A BB gun is any instrument that expels a projectile through the force of gas pressure, air pressure or spring action.  Penalties for negligent firing BB gun are lesser than for negligent discharge of a firearm.

Defenses to Penal Code 246.3(a) Charges

Common defenses to Penal Code 246.3(a) including the following:


In using the self defense claim in penal code 246.3(a) charges the defendant may claim self-defense in situations where:

  • He had the reasonable belief that he was in imminent danger of great bodily harm
  • He fired the gun with the reasonable belief that he was protecting himself
  • He used force that was reasonably necessary to deflect that harm

In case the defendant discharged a firearm in the above mentioned circumstances he cannot be found guilty of this crime. However, defendant must have ceased from using force once the threat of danger had passed.

Defendant had a reasonable belief that the gun was not loaded

Under California Penal Code Section 246.3 firing a gun intentionally is a key element of the crime. Defendant must have known that the gun was loaded for being convicted in negligent discharge of a firearm.

Defendant’s actions didn’t cause actual danger, injury or death

Prosecution must be able to prove that defendant’s discharge of a firearm posed an actual danger to people. In case no one could have been foreseeable and reasonably hurt then the defendant cannot be found guilty of negligent discharge.

Penalties for California Penal Code 246.3(a) Conviction

In California law negligent discharge is considered a wobbler and can be charged as either a misdemeanor or a felony, based on the case circumstances the defendant’s criminal history. In case the negligent discharge is done with a BB device it is always a misdemeanor.

Penalties for Misdemeanor Penal Code 246.3(a) Conviction

Penalties for Misdemeanor Penal Code 246.3(a) conviction include the following:

  • Up to one year in a county jail
  • A fine of up to $1,000
  • Misdemeanor probation

Penalties for Felony Penal Code 246.3(a) Conviction

Penalties for Felony Penal Code 246.3(a) conviction include the following:

  • Sixteen months, two or three years in a country jail under California’s realignment program
  • A fine of up to $10,000
  • Felony probation

Gang Sentencing Enhancement: California Penal Code Section 186.22

In case the defendant discharge a firearm in association with a known gang, for the benefit of the gang or at the direction of the gang with the specific intent of assisting the gang in any way he will face additional two, three or four years in prison.

California Three Strikes Enhancement

Under California’s “Three Strikes” law felony negligent discharge is classified as a “serious felony”. In case a conviction for Penal Code Section 246.3 as a felony is later followed by a charge for another felony, the defendant will face punishment twice the normal sentence for the second offense. A conviction for third felony will result in a sentence of twenty-five years to life in a state prison.

Immigration Consequences for Penal Code 246.3(a) Conviction

A negligent discharge of a firearm is considered a deportable crime and can lead to severe consequences for non-citizens. In case a defendant is a non-citizen and is convicted of this crime, he can be deported or be subject to inadmissibility grounds.

California Penal Code 246.3(a) Lawyer

For answers to any other questions you may still have about California Penal Code 246.3(a) charges or to discuss your case confidentially with our team of experienced California criminal defense attorneys give us a call at 310-933-5171. Our lawyers in Glendale, Los Angeles County, CA, are highly dedicated to serving the needs of our clients.