In California, the negligent discharge of a firearm is a serious offense. You may not be aware of this, but it is easy to violate this charge, especially if you possess a gun.  You could be charged with the offense whether or not you intended to commit the crime. The penalties for the crime are harsh, and a prosecutor won't hesitate to charge you if arrested.

For this reason, you should contact the Orange County Criminal Lawyer. Our attorneys will review the case's facts and your criminal background then advise on the right steps to take. We will help fight the charges and ensure you avoid harsh penalties.

Definition of Negligent Discharge of a Firearm According to the Law

California Penal Code Section 246.3 defines the negligent discharge of a firearm or a BB gun as discharging of a firearm in a way that could harm or cause severe injury or death to another person. According to the law, you commit the crime when you do the following:(1) willfully fire a gun, (2) discharge the firearm with gross negligence, (3) your actions result in either injury or death.

If charged with the crime, the prosecutor must show that certain elements exist for the offense to be considered a negligent discharge of a firearm beyond a reasonable doubt. These elements are:

  • Willful. Willful is an essential aspect of the crime. Accidentally firing a gun does not result in a criminal charge; the law requires that you intentionally commit the crime.
  • A Firearm or BB Gun. A firearm is a device you fire, and a projectile comes out through the barrel as an explosion. A BB device is similar to a firearm, but it expells pellets through spring action or air pressure. The prosecutor must show that you shot the firearm, which in turn discharged pellets or bullets.
  • Gross Negligence. The law requires that you act with gross negligence for the action to be a crime. Gross negligence is more than ordinary carelessness. Gross negligence is evident when: (1) Your efforts are highly reckless, resulting in an injury or death, (2) Any reasonable person in your position would know that the actions have negative consequences.
  • Dangerous Consequences. Your actions should also be dangerous enough to result in serious injuries or even death to another person. If the firing of the gun could have resulted in an injury, then that’s an offense. The law makes it clear that even if your actions are highly unlikely to result in an injury as long as the injury or death can occur, then it's a crime.

Arrest Process

For you to be arrested for a firearm's negligent discharge, police officers should either witness you committing the offense or conduct an investigation after someone else reports you. Keep in mind that when an officer observes you committing the crime, he/she will also act as a prosecution witness during a trial. If the officer did not observe you, but a report was made, an investigation will be conducted first.

During the investigation, the investigation officer will gather the necessary evidence, which includes bullet casings. The officer will also interview potential witnesses. The goal of collecting evidence and interviewing witnesses to understand what happened before finally making an arrest. If the police figure out that you are the suspect, they may attempt to question you. However, they will arrest you if they have enough evidence pointing to you as the suspect.

Once the police gather enough evidence, they will submit it together with the police report. The prosecutor will review the case and thoroughly examine the evidence to establish probable cause to make an arrest. However, the prosecutor can ask the police to go back and conduct more evidence if he/she finds that the evidence is insufficient. But in the case where the evidence is enough, the prosecutor will seek an arrest warrant from the judge.

During the arrest, the police do not have to inform you of your Miranda rights unless they plan to question you at that location. Miranda rights are constitutional laws based on the fifth amendment rights against self-incrimination. However, there is an exception. If the public's safety is threatened or in danger, the police can question you without informing you of the rights.

Miranda rights include:

  • The right to Stay Silent. It’s your right not to speak to the interrogating officer or any officer for that matter if they question you.
  • Whatever You Say Will Act as Evidence in Court. If you choose to speak to the officers, they will use whatever you say as evidence in a court. Most crimes are successfully convicted because of either statements or confessions made after suspects waive their rights.
  • The right to speak to an Attorney. It's your right to have to consult an attorney or have him/her present during your interrogation.
  • The Government Will Hire an Attorney for You. If you cannot afford an attorney due to financial issues, the government will hire one for you at its expense.

If you made any statements before the Miranda warning, your attorney could challenge the arguments or evidence collected due to the statements.  But, failure to read does not result in a dismissal of the charges. Once in police custody, the prosecutor will charge you for the negligent dismissal for a firearm, and you will be escorted to jail and held until arraignment.

Common Defenses to the Crime

For you to avoid the harsh penalties that come with negligent discharge of firearm conviction, your attorney must fight tooth and nail using some of the following legal defenses:

  • You Believed the Firearm was Not Loaded

To fire a gun unintentionally, you must know that the gun was loaded, and it would expel bullets or pellets. However, this defense may be hard to prove. The court would require that the attorney demonstrates beyond a reasonable doubt that you were unaware hence lacked the intent to either injure or kill the other person.

  • No Danger of Either Death or Injury

Your attorney should show that though you fired the weapon, there was no risk of causing another person injury or death. Your attorney could prove this by showing the time the incident took place. He/she could also show that there was nobody near the area of the incident.

  • Self-Defense

Your attorney could also argue that you were acting in self-defense when you fired the weapon. However, specific facts must be present for the defense to hold in court. These facts are:

  1. You believed that your life or that of another person was in danger.
  2. You thought that by firing the gun, you would have prevented the danger.
  3. You used reasonable force to attempt to avoid the threat from happening.

Your attorney should provide evidence showing that you immediately ceased to fire the weapon after the danger was over. Failure to this, the self-defense defense won’t convince the judge or jury beyond a reasonable doubt.

  • Accidental Discharge

Your attorney can argue that the discharge was accidental. According to Penal Code Section 246.3, willful is an element that must exist for the act to be considered an offense. For this reason, your attorney should show that you never intended to shoot or injure any person. For instance, if the gun was not yours, your attorney could show that you picked it up, and it accidentally went off.


The law is not lenient on those who chose to violate penal code 246.3. The crime is considered a wobbler offense, which means depending on some particular facts of the crime and your criminal background, the prosecutor may choose to charge you as either a misdemeanor or a felony. Some of the penalties that you risk facing if successfully convicted for a misdemeanor charge include:

  • A misdemeanor probation
  • A one-year jail term
  • A maximum fine of $1,000

For a felony conviction, you risk facing:

  • Formal probation
  • A fine of up to $10,000
  • You will serve a prison term of either 16 months, two years, or three years in a county jail under the realignment program

According to the Three Strikes law in California, a firearm felony’s negligent discharge falls under a serious felony. If you are convicted of the crime, and you go ahead and commit another felony, you will serve two times of your normal sentence. If charged for another felony, making it three felony charges, you will serve 25 years in state prison.

A violation of penal code 246.3 also has negative consequences on your immigration status. If convicted, you will be deported. You will also be deported if you plead guilty to the charges during the arraignment. Negligent discharge of a firearm also negatively affects your gun rights. If convicted of the crime, the government will take away your rights to own, possess, and use a gun.

According to the law, a negligent discharge is not subject to a sentence enhancement, resulting in 20 years in prison under penal code PC 12022.53. The enhancement is meant for offenders with more serious felonies, such as rape. However, the offense could result in additional jail term if you committed the crime to benefit a street gang under PC 186.22.


Negligent discharge of firearm qualifies for expungement California Penal Code section 1203.4. An expungement is a petition that asks the court to review a criminal record and allow for the guilty or no contest pleas to withdraw from the record. Instead of the guilty plea, you enter a not guilty plea for the case to be dismissed. The purpose of the expungement is to allow you not to be discriminated against based on your criminal record. However, you qualify for the expungement only if you:

  • You did not serve your time in state prison.
  • You have no more pending criminal charges.
  • You completed the conditions of your probation.
  • You have not violated the conditions of our probation.

Court Process

A court process involves all the legal procedures that take place in a court. The stages for negligent discharge of a firearm are:

  • Arraignment

Arraignment will be your first court appearance. The judge will read your charges and inform you of your constitutional rights about the trial. He/she will also ask how you plead of the charges before you. You can enter a not guilty, guilty, or no contest pleas. If you take a guilty or no contest plea, you will be found guilty of negligent discharge of a firearm, and the judge will proceed to sentence you or set a date for sentencing.  Before you take any plea, your attorney needs to explain the consequences of each plea first. 

The judge may also address the bail issue at this point. Depending on your circumstances, he may grant you bail or deny you or release you in your recognizance. If given bail, you will be taken back to jail until you pay the bail.  If the judge denies you bail, the case will proceed to the next stage.

  • Preliminary Hearing

A preliminary hearing’s main purpose is to establish whether there is a probable cause for the court to proceed to trial. Since the burden of proof is with the prosecutor, he/she will present evidence, including witnesses' testimonies, for the judge to decide whether there is sufficient evidence to take the case to trial. The judge will determine whether the evidence is sufficient enough to point you as the suspect. If the evidence is insufficient, the judge may dismiss the charges or suggest a reduction of the charges.

  • Pretrial Hearing

In a pretrial hearing, various motions will be brought forward by either the prosecutor or your attorney. Your attorney may file a motion to dismiss some of the charges brought against you.  The judge may allow this if the prosecutor's evidence is not sufficient enough. Your attorney may also file motions to suppress evidence if they were illegally collected.

  • Trial

California has two types of trials; bench and jury. A bench trial is presided over by a judge while a jury trial is presided over by selected community members. According to the law, whether you’ve committed a felony or misdemeanor, you are entitled to a jury trial consisting of a jury of your peers.

During a trial, the prosecutor will begin with opening statements, then followed by your attorney.  The prosecutor will then present evidence, including witnesses, before the judge and jury. Your attorney does not have to prove that you are not guilty but challenge the prosecutor's evidence. Both attorneys will have their chance to present their closing arguments.

The judge will then advise the jury on what to do before releasing them to deliberate. The court will go into recess as the jury deliberate. Once they come up with a unanimous verdict, the court will reconvene to hear the final verdict. The ruling could be either guilty or not guilty. If you are found not guilty for the negligent discharge of a firearm, you will be released. However, if the jury finds you guilty, the court will proceed to sentence, which may be set later.

You should be eligible for a new trial if the following happens during the main trail:

  1. If there was jury wrongdoing
  2. If the prosecutor acted in any misconduct
  3. If the prosecutor did not have sufficient evidence to warrant the guilty verdict
  4. Availability of new evidence that could change the verdict
  5. If the trial transcripts were lost

Your attorney should file a motion to have a new trial in case the above factors were present. He/she should do so before the judge presents the judgment. If the judge grants a new trial, the court process will begin again as if it never happened.

  • Sentencing

During a sentencing hearing, both attorneys from either side will present their reasons and suggestions as to the appropriate sentences. Your attorney will explain why you deserve lenient punishment for the negligent discharge of a firearm. On the other hand, the prosecutor will present mitigating circumstances showing why you should be punished harshly for the crime.

The judge will consider different factors such as your criminal background, your current events, including each attorney's testimonies before making the final decision. If you were charged for a felony, the judge may sentence you for up to three years or order you to pay the $10000 fine or even serve felony probation.

  • Appeal

If you are not happy with the verdict, you can file an appeal. The first step is to file a notice of appeal with the trial court within 60 days after the judgment. You should also file a Certificate of Probable Cause if:

  1. You pleaded guilty or no contest for the crime
  2. You involuntarily violated probation to which you had pleaded guilty or no contest

Once you have filed the appeal, the court clerk will ask for all the relevant records of the case, briefs, and arguments. The prosecutor will file a respondent brief showing why the conviction is proper, and the case was presented correctly.

Three judges will then discuss the case and then decide whether there is enough evidence to warrant a new trial or dismiss the case. The judges may also conclude that the trial was proper, and the conviction should stay as it is.

Related Offenses

  • Child Endangerment

Child endangerment under California Penal Code 273(a) is defined as permitting or causing pain to a minor, putting a minor in a dangerous situation, or willfully causing a minor to suffer  physical or emotional pain. Punishment for the crime depends on whether the minor sustained great bodily injury or death.

 If that did not happen, then the offense will be charged as a misdemeanor, which carries a $1000 fine or a jail term of up to six years in state prison. In case you inflicted great bodily injury or death, you will face up to six years in a state prison or a $10000 fine or both penalties.

  • Brandishing a Weapon

Brandishing a weapon is a violation of California Penal Code 417. The crime is defined as to draw your gun or exhibit a deadly weapon in a way to scare or threaten someone and not as a self-defense means. Brandishing a weapon is a misdemeanor offense punishable by up to one year in county prison.

  • Felon with a Firearm

According to California penal code 29800, it is a violation to own or possess a firearm if: (1) you have been previously convicted of a felony, (2) you have been previously convicted of misdemeanors on brandishing a weapon, (3) you are a narcotic addict. If convicted of the crime, you will face three years' jail term in county prison, a $10000 fine, or both penalties.

  • Shooting an Inhabited Dwelling or Vehicle

California penal code 246.3 makes it an offense to shoot or discharge a deadly weapon in an empty or unoccupied building or vehicle, aircraft, or RV. The crime is charged as a felony with severe consequences. You will serve up to one year in a county jail or up to seven years in state prison and a fine of $10000.

Find a Orange County Criminal Lawyer Near Me

California law is serious about criminal cases involving firearms. Besides the harsh penalties, you risk losing certain privileges, including owning or using a gun.  If you or anyone you know has been charged with the negligent discharge of a firearm, you need to call the Orange County Criminal Lawyer. We are dedicated to helping you fight the charges and avoid the harsh penalties. You can reach us by dialing 714-262-4833 if you have any questions.

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