Every state is concerned about the increase in gun crimes and the easy access to firearms. California is no exception and has stringent firearm laws. You can be charged with California Penal Code Section 246.3 PC if you knowingly and recklessly shoot your gun or any other firearm and create a risk of death or injuries to another person. The crime is a wobbler, and a conviction can jeopardize your life, career, future, and finances and leave you paying hefty fines and serving time. One effective way to avoid a criminal record is to consult an experienced defense lawyer like the Monterey Criminal Attorney. We understand your rights and can work to ensure an accident does not make you a felon. With our attention to detail skills and meticulous, in-depth preparation of your case, we can help you have your charges reduced or even dismissed. If the case proceeds to trial, we can use our professional relationships with the judge and prosecutor to ensure you receive the best possible case outcome.

What is the Violation of PC 246.3?

California PC 246.3 is the California statute that defines negligent discharge of your firearm as willfully discharging a gun in a careless way that could lead to death or injuries to an individual.

Before a conviction, the prosecution must establish beyond any reasonable doubt the following facts of this criminal activity:

  • The accused intentionally/deliberately shot their BB device or firearm.
  • The defendant shot their device or weapon with gross negligence.
  • The accused’s shooting could cause another individual’s demise or injuries.

You Acted Intentionally

Willful or deliberate conduct is a critical element of this crime. The court cannot find you guilty unless you willfully fired your BB gun. Accidental firing or pulling the trigger unintentionally does not satisfy the willful behavior threshold.

Likewise, the court cannot sentence you if you thought the gun was unloaded. The assumption implies you did not intend to fire your weapon.

BB Devices or Firearms

Firearms are devices tailored to be weapons that expel a projectile or discharge it via a barrel. Thanks to any kind of combustion force, including an explosion.

Additionally, PC 246.3 applies to your BB device. BB devices expel a projectile like a pellet or BB. It can be through air pressure, spring action, or gas pressure’s force.

Gross Negligence

Negligence is causing injuries by failing to act with reasonable caution. Gross negligence is more serious than an error in judgment or ordinary negligence.

A defendant acts with gross negligence when every statement below is correct:

  • Their reckless act carries a risk of great bodily injuries or death.
  • A reasonable, cautious individual would have recognized that behaving so would result in the risk.

You act with gross negligence when your behavior differs from a cautious individual's in a similar state of affairs. It makes your conduct indifferent to the repercussions of their acts or shows a disregard for human life.

A great bodily injury is a substantial physical injury beyond a minor or moderate injury. Examples of GBI are as follows:

  • Gunshot wounds.
  • Fractured bones.
  • Complete loss of motor functions.
  • Contusions.
  • Nervous system-related injuries.
  • Concussions.

Could Have Led to Death or Injuries

Firing a weapon becomes PC 246.3 if this shooting can cause death or injuries.

You can be convicted of this crime, provided there is a likelihood.

Some acts the law deems negligent discharge include:

  • Firing warning shots.
  • Firing in the air.

Penalties and Sentencing for Violating PC 246.3

Prosecutors charge the crime in question as a wobbler (the prosecution can file the crime as a California felony or misdemeanor, depending primarily on your allegation’s circumstances and criminal history).

It is a misdemeanor to violate the law using BB devices. Its possible penalties are:

  • Summary/informal probation.
  • A maximum of $1,000 fine.
  • A one-year county jail sentence.

On the other hand, a felony is punishable by:

  • Sixteen months, two, or three years in jail, according to the realignment program.
  • A $10,000 fine.
  • formal/felony probation.

Sentencing Enhancement

Most sentencing enhancements for California offenses do not relate to PC 246.3 convictions.

For instance, sentencing enhancements for the use of a gun while committing a California felony do not affect PC 246.3. It is because it applies to crimes that do not involve using a gun.

Also, negligent discharge is not among the felonies outlined in the “10-20-life use a gun and you are done” law.

However, this crime can result in sentencing enhancements per PC 186.22 (California gang sentencing enhancement). Before increasing your sentence, the prosecutor must prove that:

  • You attempted or committed an offense concerning, following the directions of, or for the gain of your criminal street gangs.
  • When you violated the law, you planned to further, promote, or help criminal gang behavior.

Please note that the court must first convict you of PC 246.3 for this sentencing enhancement to apply. It means the prosecution must establish all the facts of PC 246.3 and the elements outlined above. You will spend two, three, or four more years in state prison if found guilty.

Also, you do not have to actively participate in the gang during the crime committed for the sentencing enhancement to apply.

Three Strike Laws

Under the three strikes laws, PC 246.3 is a serious California felony.

If a defendant has a prior strike on their criminal record and is later convicted of negligent discharge as a California felony, they become a second striker. In this case, they will serve twice the maximum sentence for negligent discharge.

You become a third striker if you have two prior convictions for violent or serious felonies and are later convicted of PC 246.3 as a felony. In this case, you will spend 25 years or life imprisonment.

Strike sentences are served consecutively. You must complete eighty percent of your sentence before being released as a second or third striker.

Immigration Penalties

Negligently discharging your weapon is a deportable offense for immigrants.

Your criminal defense attorney should ensure you avoid pleading guilty to this crime. Most non-citizens plead guilty, believing it is something minor, only to realize later that deportation is more detrimental than paying fines or serving time.

Negative Gun Rights

You will lose your firearm rights if found guilty of PC 246.3, a California felony. California’s law bans felons from possessing, owning, or buying guns.

Beating Your Gun Criminal Charges

Here are some practical and valid legal defenses you or your lawyer can use to fight your criminal charges.

You Acted in Self-Defense

Please note that firing your firearm in the air to make a show of or in celebration is not a situation where you would excuse self-defense. However, there are instances where it applies.

To claim self-defense, you should prove all the following elements:

  • You had a reasonable belief that you/ a loved one was at risk of sustaining bodily injuries.
  • You fired your weapon believing that you were protecting yourself or your loved one from the pending harm.
  • You did not apply more force than was essential to safeguarding yourself or your loved one.

After the danger or risk passes, you should stop applying more force than is crucial to safeguard yourself. For example, you cannot continue firing the weapon at a person or use it to physically attack them if the individual has become incapacitated or fled.

You Thought the Firearm was Unloaded

You should have been aware the gun was loaded before the judge convicts you of this crime.

Depending on your case facts, it can be challenging for the prosecution to demonstrate that you had this knowledge. You can argue that you stored the weapon and forgot it was loaded or that a loved one owned it.

There Was Absence of Risk of Death or Injuries

The court can only find you guilty of PC 246.3 if there exists a risk that the gun could kill or injure someone.

It hinges on the incident’s time, venue, and number of individuals around. The prosecution should establish all these facts. Your seasoned defense lawyer should find gaps in the prosecutor’s evidence and convince the jury of your innocence.

Related Offenses

Discussed below are criminal activities charged alongside or instead of PC 246.3.

Shooting at an  Occupied Car or Inhabited Dwelling

PC 246 bans a drive-by shooting. More specifically, the statute makes it illegal to discharge a firearm at an occupied car, aircraft, building, or housecar.

The crime is a California felony, punishable by felony probation, seven years in prison, and a ten-thousand-dollar fine.

PC 246.3 misdemeanor conviction carries less severe penalties than a PC 246. Therefore, most defense attorneys work to reduce their clients’ charges to the negligent discharge of a gun, especially if it is unclear who fired at the vehicle or building.

Brandishing Your Weapon

California PC 417 makes it illegal to exhibit or draw a weapon rudely, angrily, during an argument/fight/quarrel, or in a threatening manner.

The crime is a California misdemeanor if the weapon used is a gun. It attracts up to six months in jail.

Sometimes, defendants are convicted of both PC 417 and PC 246.3. It can happen if you are arguing with somebody else, which results in you removing your gun and firing ‘’warning shots.’’

Felon with a Firearm

If you are arrested for PC 246.3 and have a previous felony conviction, you could face a felon with a firearm charge (PC 29800).

The law applies to any person with a previous felony conviction who knowingly receives or possesses a gun. A conviction attracts sixteen, two, or three additional years.

Felony-Murder Rule

Typically, you are only found guilty of California murder if you acted with premeditated malice. However, the felony-murder regulation does not apply to this principle.

Per California’s felony-murder rule, you can be sentenced for murder if you accidentally kill another while committing a specific, inherently dangerous felony.

Previously, courts convicted defendants of murder per the California felony-murder principle if they mistakenly killed another while engaging in a felony PC 246.3.

However, later, the Supreme Court ruled that the California felony-murder principle does not apply to negligent discharge. Thus, you cannot be found guilty of murder if you are arrested for PC 246.3 and mistakenly kill another.

Restoring Your Firearm Rights

A felony conviction can result in a lifetime ban from buying, possessing, or owning a firearm. Luckily, you can attempt to restore your gun rights through either of the following:

  • Charge reduction.
  • Governor pardon/ Certificate of Rehabilitation.
  • Expungement.

California Expungement

Expungement involves setting aside your conviction and erasing your criminal record.

When there are no records of your conviction, you do not have to deal with the hardships related to the blemish on your criminal history. It allows you to claim employment or rental applications that you were never convicted of any crime. However, you should reveal your conviction when applying for state professional licenses or running for public office.

Regarding the 2nd Amendment to the U.S. Constitution, felony convictions punishable by California state prison sentences are ineligible for expungement. However, PC 246.3 is not one of them. You are eligible for this post-conviction relief if you meet the requirements below:

  • You do not have pending criminal charges.
  • You have completed your probation.
  • You have not violated another law.

Please note that you could qualify for expungement even if you violated your probation terms. The judge will schedule a hearing to consider the need for post-conviction relief to assist your loved ones and criminal record, among other factors.

Governor Pardon/ Certificate of Rehabilitation

While a Certificate of Rehabilitation will not delete your criminal record, it is a court order indicating that you are a law-abiding citizen.

You qualify for COR if:

  • You have not been sentenced for another crime since you completed your sentence.
  • You are not on felony probation.
  • You have lived in the state for more than five continuous years before filing for a COR.
  • You have been rehabilitated after your release from probation or detention.
  • You were found guilty of a California felony and sentenced to formal probation, and the judge has expunged your conviction.

The application process involves the following steps:

  1. Acquiring and bringing your petition for a COR to the Superior Court of your residence.
  2. Submitting information about your conviction along with your petition. (It can include your conviction’s date, the specific charge, penalties imposed, your release date, and when you were discharged from probation).
  3. Attending a court hearing where your defense attorney will present evidence in favor of a COR.

If the judge grants COR, it is an automatic application for a governor’s pardon. A governor’s pardon has many benefits, like restoring your firearm rights.

Reducing Your Felony Wobbler Charge to a Misdemeanor

Finally, you can restore your gun rights by reducing your PC 246.3 felony charge to a misdemeanor by filing a 17b motion. Please note that this option applies, provided you do not have other impediments to possessing a gun. The judge must also have placed you on probation.

The judge can reduce your charge at any of the points below:

  • After your preliminary hearing.
  • During your felony case sentencing.
  • After completing probation (If you are still on probation, your attorney can help you acquire an early probation termination to expedite the process).

When determining whether to grant the PC 17b motion, the judge considers the following factors:

  • The nature of the alleged crime.
  • Circumstances surrounding the case.
  • Your personal history.
  • Your criminal records.
  • Your adherence to your probation conditions.

Please note that a Penal Code Section 17b reduction can restore firearm entitlement per federal law, provided the judge did not make a felony ruling. After a felony conviction, reducing your conviction to a misdemeanor might not be sufficient to restore gun rights.

Invoking the Right to Remain Silent

Law enforcement agents are required to inform you of your Miranda rights. The prosecution could use your statements in a subsequent interrogation. Your statements are admissible as evidence against you if you fail to appropriately plead your right to stay silent or the right to legal representation.

Therefore, if law enforcement agents read your Miranda rights and you understand your rights, the police might continue or eventually try to interrogate you. The 5th Amendment will only hinder statements you made while silent from being utilized as proof if you inform them of a desire to plead your right to remain silent.

Even if you do not plead the right to stay silent appropriately, the police should ascertain that you waived the right for statements made during the investigation to be admissible as proof against you.

Nevertheless, waiving your rights does not have to be explicit. You could still do it if you make willful statements after being informed of and understanding your Miranda rights.

How to Properly Plead Your Right To Stay Silent

Due to the U.S. ruling that silence and body language are ambiguous, the appropriate way to stay silent is to inform an interrogator. “I plead my 5th Amendment protection to remain silent.” Nonetheless, there are other means to plead clearly. For instance, you could state:

  1. You exercise your right to keep quiet.
  2. You have decided to remain silent.
  3. You will only speak with your lawyer.
  4. You want to first consult with your legal counsel.

Making Voluntary Confessions

A voluntary confession is a culpability for a crime you have committed or an admission of guilt. You make a voluntary confession willingly and freely with coercion.

It can prove significant in your PC 246.3 case because it shows you accept liability for your conduct. The prosecution can use it to verify your case facts beyond reasonable doubt when you clearly and precisely present them. You can make your confession orally or in writing.

How the Court Proves Your Confession is Voluntary

In your criminal proceeding, the court should assess the voluntariness of your confession. When doing so, the judge considers your age, intelligence, mental condition, education level, and the facts surrounding your confession, like coercion, the existence of threats/promises, and the interrogation’s length.

Next, the judge should analyze whether your confession is reliable. Some factors the judge considers include the presence of promises/threats, coercion, and your mental status.

When is Your Confession Inadmissible in a Court of Law?

If the police did not voluntarily obtain your confession, it is inadmissible in court. The court considers the following factors when determining the admissibility of the confession:

  • Whether the law enforcer read you Miranda rights.
  • Coercion — A confession obtained by coercion can be taken under pressure, making it untrustworthy.
  • Whether the person confessing was drunk or suffers from a mental health condition.
  • Whether the defendant made the admission after requesting their defense lawyer unless they waived their entitlement to legal representation.

Can You Withdraw Your Confession?

The capability to withdraw your confession depends mainly on the jurisdiction in which you confessed and your case facts. Generally, you cannot reverse it after admitting guilt. Otherwise, you risk suffering legal consequences.

The court can throw out an admission if it rules that the police officer illegally obtained it. In this case, you can recant the confession.

Does Confessing Make a Defendant Guilty?

You are not automatically guilty after confessing to the crime.

On the other hand, your confession is significant proof of guilt, and the prosecution can use it against you in court. The prosecutor will attempt to prove you confessed voluntarily, but the judge decides on guilt based on the presented case evidence, including your confession.

Find an Experienced Gun-Related Crime Defense Attorney Near Me

Accidents happen, but the law does not have many exceptions regarding firearms. A PC 246.3 allegation can escalate to criminal charges and adversely affect your rights and life before the judge reaches a verdict. A conviction can carry severe consequences, including costly fines and incarceration. California gun laws can be intricate and challenging to navigate. The knowledgeable legal team at Monterey Criminal Attorney has a deep understanding of these laws and stays informed on the changes to ensure we can offer the most accurate advice and protect your legal rights. 

If you or a loved one faces these criminal charges, please contact us at 831-574-1791 for a free case review. We will gladly hear your side of the story and guide you accordingly.