If you lawfully possess a firearm or even a BB or pellet gun, you could be found guilty of negligent discharge of these devices if you:
- Intentionally fired a gun, BB gun or pellet gun,
- In a grossly negligent manner,
- That had the likelihood of causing death or serious bodily harm.
This conduct is prohibited under California Penal Code Section 246.3 and was enacted to criminalize such activities as firing a gun into the air in a residential or commercial area where people are likely to be present.
For purposes of this law, BB guns and pellet guns are included.
What is Gross Negligence?
Gross negligence implies more than simple negligence such as being distracted or not noticing a red light while driving and causing an accident. It is reckless conduct or that which exhibits a disregard for human life or its consequences, or which creates a high risk of death or serious injury.
Likelihood of Causing Death or Serious Injury
Firing a gun into the air or at nothing in particular could be considered grossly negligent behavior, but you must also have done so where there was a likelihood of a bullet striking someone. Merely firing it into the desert with no persons around for miles is not likely to cause anyone harm from a stray bullet.
Defenses to Negligent Discharge of a Firearm
- Belief the Gun was Unloaded
This negates the intent to fire a gun, but you probably need testimony from other persons that you were surprised that the gun fired or that you possessed the gun for a long time believing it was unloaded.
- No likelihood of Death or Serious Injury
Firing the gun in the desert or other isolated area where no persons are seen or believed present could be a defense since you reasonably believed it was unlikely no one would be hit.
Firing a gun in the air to protect yourself from attack from another person or attack animal could be a defense so long as you reasonably believed you or another person was in imminent danger of serious bodily harm and firing the weapon would scare off the person or animal.
Penalties for Negligent Discharge of a Firearm
Under PC 246.3, this offense is a “wobbler’” or could be charged as either a misdemeanor or felony depending on your criminal history and the facts of your case.
As a misdemeanor, you face up to one year in county jail and a $1,000 fine. If convicted of a felony, you face incarceration in state prison for 16 months, 2 or 3 years and a fine up to $10,000.
- Three Strikes Implications
A felony conviction also serves as a ‘strike’ under California’s three strikes law so that a second strike automatically doubles your sentence and a third subjects you to 25 years to life imprisonment.
- Other Consequences
If you were a criminal street gang member or fired the gun while in association with a criminal street gang and did so in furtherance of any criminal conduct, you face an additional 5 year sentence that is applied consecutively along with the Negligent Discharge conviction.
Criminal offenses that could also be charged with negligent discharge of a firearm include:
- Brandishing a weapon (PC 417)
- Carrying a loaded firearm (PC 12031)
- Second degree homicide PC 187)
Should you have fired a gun pursuant to this law and killed someone, you are also likely to be charged with Second Degree homicide and a minimum prison sentence of 15-years to life. The same is true if you were an accomplice to the person who fired the gun and killed someone. This is to impose criminal liability on persons who accompany the shooter during drive-by shootings.
For legal aliens or other non-citizens, negligent discharge of a firearm can have severe consequences regarding your legal status. Although in some cases a gun crime can be reduced or dismissed, in most instances you face an increased risk of deportation since this is considered a serious crime and one of moral turpitude.
Call the Law Offices of Ramiro J. Lluis
Any gun crime conviction, including negligent discharge of a firearm can result in serious prison time and have long range or permanent adverse consequences on your life. If you have been charged with a gun crime, call the Law Offices of Ramiro J. Lluis today for a free, confidential initial consultation at (213) 687-4412.