The law that criminalizes the negligent discharge of a firearm in California is PEN 246.3. You can only be guilty of this offense if your actions were intentional and not accidental. The crime is a wobbler, meaning the prosecutor can charge you with misdemeanor or felony charges based on the offense's circumstances and your criminal background. The penalties for the violation, irrespective of how they become charged, are severe and could earn you a criminal record.

When you are faced with allegations of negligently discharging a firearm, you need to hire a lawyer's services to represent and defend you during the trial. At San Jose Criminal Attorney Law Firm, we are experienced in criminal law and understand the various strategies to challenge the prosecutor's case.

Defining PEN 246.3 According to the Law

The offense of negligently discharging a firearm occurs when you willfully or intentionally discharge a gun or a BB device. And you do so with gross negligence that may lead to injuries or fatality of another person.

Below, we discuss some legal terms used in defining the crime for better understanding. These terms are:

Intentionally Discharging

The element of intention is a critical factor in proving the offense. The prosecutor must show that you intentionally fired the weapon, but you are innocent of the allegations if it was accidental. Further, if you reasonably thought or believed the gun was unloaded, you will not be convicted of the firearm's negligent discharge.

For instance, you visit your friend that legally owns a gun. Your friend sends you to pick something for her from her bedroom closet. As you look through, you notice a box, and out of curiosity, you open it and find a weapon. You assume that your friend cannot keep a loaded gun in the house, so you proceed to understand how it works. You pretend to shoot, and as you pull the trigger, your friend walks in, and the bullet hits at her shoulder, causing significant injuries.

As you pulled the trigger, you honestly thought the weapon was not loaded, and neither did you know your friend was to come in at that particular moment. Although your actions were reckless, they were not intentional and so you are innocent of violating PEN 246.3.

BB Device or a Firearm

The law refers to a firearm as any device that is designed to be used as a weapon. This device works when a projectile is expelled or discharged via a barrel by explosion or another combustion type.

Additionally, if you negligently discharged a BB device, you will also face charges of violating PEN 246.3, although the offense is less punished. Under this device, the law defines any instrument used to discharge a projectile like a pellet or a BB by spring, air, or gas pressure.

For instance, during a college football game, Ben comes with his BB gun. When his team earns a point, he fires it out of excitement, pointing at the floor. While a BB device is not a gun, it is still an offense because it could have hurt others. For this reason, Ben may face allegations of violating PEN 246.3.

Gross Negligence

 Being negligent is different from being grossly negligent. When charged with violating PEN 246.3, the prosecutor must prove that you acted in gross negligence. This is possible if the below are both true:

  • Your actions were reckless, causing significant risk of bodily harm and death and
  • Any reasonable person would know that their activities are risky or dangerous to others

According to this definition, gross negligence must be more than when a person is ordinarily careless or has made a mistake. You are guilty of gross negligence if you acted differently from how a generally careful individual would under similar circumstances. Additionally, your actions show total disregard for human life and that you were indifferent to your actions' repercussions.

May have Led to Injuries or Death

The last and equally important element to this offense is showing that your grossly negligent actions could have led to injuries or death. Under this element, it is essential to note that it doesn't need to have been probable that a person would have sustained injuries or death. But, provided it is a possibility even how slight, you are guilty of violating PEN 246.3.

Some behaviors that are considered to be a negligent discharge of a firearm in California include:

  • Shooting or firing in the air
  • Firing warning shots

For instance, you decide to go to an isolated cabin for the weekend and take with you a riffle to scare off animals. While you are there alone, you get drunk and decide to shoot in the air for fun. Unfortunately, a ranger near your cabin hears the shots and comes to investigate the happenings. After the ranger's findings, he reports you to the police. In this case, even though you are guilty of intentionally firing your rifle, the act was not negligent because no one could have been injured or died as a result.

Penalties for Negligent Discharge of a Firearm – PEN 246.3

As earlier stated, the offense of negligently discharging a weapon is a wobbler. The prosecutor looks at the offense's facts and your criminal background before deciding on misdemeanor or felony charges against you. However, discharging a BB equipment or device despite the circumstances or your background is a misdemeanor.

If you become charged with a misdemeanor offense, the penalties you are likely to face are:

  • Summary or misdemeanor probation
  • A year of county jail or less
  • A cash fine, not exceeding a thousand dollars. This fine is charged in addition to the jail sentence or instead of it.

If, however, you are faced with felony charges, the penalties are steeper and include:

  • Formal or felony probation
  • Incarceration in prison for sixteen, twenty-four, or thirty-six months under California's realignment program
  • A fine not exceeding $10,000. This fine is charged instead of or in addition to imprisonment

Probation Terms and Conditions

One of the best outcomes for this offense besides a dismissal of the charges is a probation sentence. When you receive probation as your punishment, it means you avoid incarceration and continue with your life, but under certain conditions. When the judge sentences you to probation, the terms and conditions that accompany your sentence must be followed or obeyed. If you face accusations for violating any of the probation terms, you risk having the sentence revoked and reinstating a jail sentence.

Some of the conditions that accompany probation include:

  • Paying off the fine asked by the court
  • Doing community service and accomplishing the hours assigned
  • Periodically reporting to your probation officer as required
  • Not having or using a gun during the probation period
  • Not committing another crime

If you violate any of these or other terms of your probation, your probation officer will report the court's violation. Afterward, a hearing date is set when you can defend yourself against the allegations. During the hearing, your lawyer can represent you and argue your case.

After the hearing, the judge can decide to amend the probation terms, allow you to continue with the conditions as they are, or revoke the probation sentence. Revoking probation is the harshest penalty you can receive because it will mean you receive a jail term instead.

Sentence Enhancement

Some circumstances of the offense can result in increased punishment. Fortunately, not all sentence enhancements apply to this offense. For instance, if you used the gun or fired it while committing a felony, your sentence is increased over the standard one. But, in violating PEN246.3, you did not discharge the firearm to commit a crime; your only offense was the intentional and negligent discharge that could have caused injuries or death. In this case, your offense does not qualify for sentence enhancement.

Another sentence enhancement in gun offenses is California's 10-20-life, use a gun, and you are done law. Under this enhancement, several gun-related felonies are found. However, violating PEN 246.3 does not fall in this category, and you will not receive sentence enhancement in this case.

But, you can face sentence enhancements if the offense was gang-related, according to PEN 186.22. When you negligently discharged a firearm to benefit a gang or at their direction. Or because you are associated with them and did that to assist in their activities, your sentence is enhanced. In this case, the enhancement can result in additional prison time of two or three or four years.

California's Three-Strikes Law and Negligent Discharging of a Firearm

If the prosecutor charges you with negligent discharge of a firearm as a felony, it is a severe offense under California's three-strikes law. This means, if you hold a prior felony conviction for violating PEN 246.3 and are faced with another felony, a conviction will result in two times the standard punishment you would have earned for the second offense.

If you earn another strike making them three, a conviction for the same offense can result in an extended jail sentence of 25 years to possible life imprisonment in the state prison.

Effects of a Conviction to your Immigration Status

Some offenses in California are unfavorable to immigrants because of the severe repercussions. Not all crimes negatively affect immigrants, but negligent discharging of a firearm is a deportable offense. This means as an immigrant, a guilty verdict for this offense can result in your deportation.

However, you can avoid deportation if you successfully fight the charges against you. Finding a criminal attorney who can challenge the prosecutor's case is critical to preventing this possible adverse outcome.

Legal Defenses to PEN 246.3 Violations

As earlier stated, if you face any criminal allegations, you must engage an attorney who immediately understands the matter. Your lawyer will study your case, investigate the circumstances, and interview the arresting officers and witnesses. Your attorney will devise strong defenses that will have your charges dismissed from the findings, or you receive less harsh punishment. Some arguments that can help your case depending on the circumstances are:

You Acted in Self-defense

If you reasonably believed you or another person was in danger and you discharged the firearm in your defense or another, you are innocent of violating PEN 246.3. After your lawyer investigates your case, this defense is applicable when the below are accurate or factual:

  • You reasonably thought or believed you were in danger or another person was facing the risk of sustaining injuries or being unlawfully touched
  • Because of the probable threat, you felt or thought that firing of the gun would protect you or the other person from the imminent danger and
  • The force you used was reasonable and necessary under the circumstances

For instance, you have gone camping in an area frequented by campers. As you sleep in your tent, you hear noises, and on looking, you find a bear that wants to attack the campsite. You immediately become scared of what the bear would do, and you fire your gun to scare it.

In this case, you had a genuine reason to believe that you and other campers were in danger, and you fired to protect yourselves from it. If this is what happened, you are not guilty of negligently discharging your firearm, where there was a risk of causing injuries or death.

You Thought the Firearm was not Loaded

One of the critical elements a prosecutor must show following allegations of violating PEN 246.3 is intention. If your firing of the fun was not intentional but an accident, you cannot be found guilty. After your lawyer studies your case and its circumstances, this defense can challenge the prosecutor's element of intent.

The intentional shooting of a gun is not a crime element the prosecution could prove easily. Considering the earlier discussed example, if you believed the weapon belonging to your friend was not loaded and fired it, the act was not intentional. Accidental firing or discharging a firearm is an acceptable defense if your lawyer can prove that your actions were not deliberate.

There Existed no Real Danger or Risk to Life or Injuries

You will not be convicted of a firearm's negligent discharge when no real danger existed to another person. The circumstances of the offense that can result in this defense depend on where and when the violation occurred. For instance, using the earlier example where you were in a cabin alone with no others around you and shooting in the air, there was no one near that could have sustained injuries or death.

If the alleged offense circumstances did not put anyone in danger, you would not receive a conviction for the crime.

Expungement of Your Record

Expungement means deleting your record such that it is not available to the public, and it will appear like you never committed the offense or received punishment for it. A criminal record can adversely affect your personal life, even your career.

When your record indicates that you have a past conviction for a crime, you will likely face numerous hardships in your daily life. For instance, if you need a house to live in, your potential landlord can deny you the house even when you can afford it. After running a criminal background on you, a conviction may mean you are unreliable or untrustworthy.

Additionally, searching for employment opportunities or retaining a job may be challenging. A current or potential employer can assume you are untrustworthy because of your record. Although this seems unfair, human beings always want to protect themselves from potential threats, and your criminal background is a threat. Owning a gun or using one is also prohibited after a conviction for this offense.

But, all is not lost. After serving your probation or sentence to the court's satisfaction, you can petition the court to expunge your record. Your lawyer files the petition in which the prosecution receives a copy. A date for the hearing is set should the prosecutor oppose the expungement. During the hearing, the prosecutor will convince the court why you do not deserve your record to be expunged, while your lawyer will argue against them.

If the judge grants the expungement, it means your record is not available for public scrutiny, but only to law enforcement agencies. The challenges you were facing looking for employment or accommodation cease, and you receive equal opportunity.

This means, if a member of the public or potential employer asks you about your criminal background, you can truthfully answer you do not have. However, if you seek employment in law enforcement or public office, not disclosing this fact disqualifies you.

Related Offenses to PEN 246.3 Violations

When offenses are connected, it means that you can face charges for it alongside or instead of that of violating PEN 246.3. Sometimes, when faced with overwhelming evidence for a higher violation, the prosecutor may opt to prosecute you for it and have you severely punished. On the other hand, if there is no sufficient evidence against you for violating PEN 246.3, the prosecutor can agree to a plea bargain deal where you face charges on a lesser offense.

Some of the offenses closely related to PEN 246.3 are:

PEN 246 – Shooting or Firing at an or Occupied Inhabited Dwelling or Car

PEN 246 criminalizes the act of:

  • Firing or shooting at an inhabited house
  • Shooting at a building that is occupied or
  • A vehicle with occupants

Though a felony, the offense can be punished through county jail imprisonment for six months to a year or state imprisonment for three years, or five or seven. If, while you negligently discharged a firearm, you were pointing it at an occupied building or car, the prosecutor can charge you with this offense instead because it carries stringent penalties.

Most defendants faced with PEN 246 charges often plead with the prosecutor to reduce their charges to those of PEN 246.3 because they are less punished.

Brandishing a Weapon – PEN 417

This statute makes it a crime to brandish a weapon in public or at another person. This offense is often committed when a person is in a heated argument and shows off their gun to scare off or display his power.

Negligent discharging of a firearm is a more serious offense compared to brandishing a weapon. If you face violations for PEN 246.3, your lawyer can persuade the prosecutor to charge you with a lesser crime. In this case, PEN 417 can be preferred charges that will see you serve a maximum of six months in county jail.

PEN 29800 – Felon with a Firearm

Persons with prior specific felony convictions are prohibited from having or using guns. If you face charges of negligent discharge of a firearm and have a previous felony conviction, you can also become charged with violating PEN 29800.

Any person with a past felony conviction that knowingly has or agreed to have a firearm is guilty of violating this California statute. If you face charges for a gun's negligent discharge and have a previous felony conviction, a felony with a firearm charge will enhance the standard sentence. The judge can sentence you to a further sixteen months or twenty-four or thirty-six to prison considering your history. Additionally, even after completing your sentence, you will not be allowed to own a firearm again.

Felony - Murder Rule

Typically, defendants in a murder case could only be found guilty of the offense if the prosecutor proved the element of malice aforethought. However, the felony-murder rule is exempted from this. Under this rule, you would only be guilty of murder when you accidentally killed a person while committing known dangerous crimes.

Previously, suppose you became charged with a felony negligent discharge of a firearm that resulted in another person's death. In that case, you could face murder charges under the felony-murder rule. However, in 2009, this changed when the Supreme Court held that the felony-murder rule should not apply to a firearm's negligent discharge.

This means, if your actions of negligent discharge of a firearm resulting in another person's death, you cannot be charged or convicted of their murder.

Find a San Jose Criminal Lawyer Near Me

Criminal allegations could attract severe consequences, especially when not aggressively defended. If you face charges of negligent firing a firearm, the offense is severely punished because the victim could have been injured or killed because of your actions. Therefore, fighting the allegations must be your primary goal, and this is achievable through the help of a skilled lawyer. At San Jose Criminal Attorney Law Firm, we have experience in criminal law and develop the best strategies in challenging the prosecutor's evidence. Call our offices at 408-622-0204 to schedule an appointment and discuss your case in detail.