Discharge of a Firearm Crimes
PC 246 & 26100 Law & Defense
The crime of discharging a firearm is found at California penal code sections 246 and 247.
Note: The term discharging simply means firing a projectile, usually a bullet, from a gun. The term discharging a firearm is actually a misnomer because a firearm is not discharged; rather a projectile is discharged from the firearm.
There are a few different discharging a firearm crimes under different penal code sections. Each different crime deals with a slightly different set of facts. For example, PC 245.3(a) is charged as discharging a firearm in a grossly negligent manner, whereas PC 246.3(b) is charged as discharging a BB gun in a grossly negligent manner. The different charges carry different sentences and penalties.
This article deals mostly with PC 246, which is charged as purposefully discharging a firearm in a house, vehicle, or aircraft, but we have included information on other discharging a firearm crimes at the end of this article.
PC 246 Law
To prove that the defendant is guilty of discharging a firearm under PC 246, the district attorney must prove that defendant:
Discharged a firearm into either a house, an occupied building, a vehicle, or an aircraft
When the defendant discharged the firearm he or she did so willfully or on purpose
PC 246 Penalties
PC 246 may be charged as a misdemeanor or as a felony. If found guilty of felony PC 246, the defendant may face up to seven years in prison; if found guilty of misdemeanor PC 246, the defendant may face up to one year in the county jail.
Note: Whether the district attorney files felony or misdemeanor charges of discharging a firearm depends on the facts of the case and the defendant's criminal history.
Probation Sentence: A probation sentence is period of supervision in lieu of jail or prison. Probation sentences are allowed in PC 246 cases, but they are not guaranteed. Whether or not a defendant is sentenced to probation after a conviction for discharging a firearm depends largely on the defendants'criminal history and the circumstances of the case. Probation sentences for PC 246 conviction s can include some jail time; however, actual incarceration as a term of probation may usually be served alternatively on work release or house arrest.
PC 1170(h): If the defendant is convicted of felony discharging a firearm, and he or she is not granted a probation sentence, then the defendant will be ordered to serve his or her time in prison (as opposed to a local county jail), and no part of that prison sentence may be split (served partially in prison and partially out of prison on work release), or suspended (not served unless the defendant violates a probation term).
Three Strikes Law: Felony PC 246 is consider a strike offense under California's Three Strikes Law. Felony PC 246 is also considered a serious crime in California under PC 1192.7, which means that plea bargain options are limited.
CIMT: Both felony and misdemeanor PC 246 charges are considered crimes involving moral turpitude, which means that if the defendant is found guilty of a discharging a firearm crime, he or she will suffer severe negative consequences with professional licensing and federal immigration issues.
In addition to any possible jail or prison sentence, if the defendant is found guilty of PC 246, he or she may also be subjected to civil lawsuits, fines, restraining orders, restitution, and other punishment.
PC 246 Defense
Common defenses to charges of discharging a firearm include: accidental discharge (simple negligence, not gross negligence), statute of limitations, mistake of fact (believing the gun to be unloaded), coerced confession, self-defense, defense of other people, intoxication, and more.
If you have been charged with discharging a firearm into an inhabited dwelling, vehicle, or occupied building, under California penal code 246, contact our criminal defense attorneys today for a free consultation with an experienced lawyer. Call today! Our criminal defense lawyers are available seven days a week to answer all of your questions. Call today!
Shooting at an unoccupied dwelling, building, vehicle, or airplane PC 246 (up to seven year sentence in the state prison as a felony or up to one year sentence in the county jail as a misdemeanor)
Discharge a firearm in a gross negligent manner PC 246.3(a) (up to three year sentence in state prison as a felony and up to one year county jail sentence as a misdemeanor)
Discharge firearm at unoccupied aircraft PC 247(a) (up to three year sentence in state prison as a felony)
Discharge firearm at unoccupied vehicle or building PC 247(b) (up to three year sentence in state prison as a felony or up to a one year sentence in the county jail as a misdemeanor)
Quick Legal Reference
Crime: Discharge a Firearm in a Grossly Negligent Manner
Code: PC 246.3(a) (CalCrim No. 970)
Wobbler: Yes. PC 246.3(a) is a wobbler. This means PC 246.3(a) may be charged as a felony or as a misdemeanor.
Incarceration: Felony PC 246.3(a) prison sentence range: 16 months, 2 or 3 years (unless probation granted). Misdemeanor jail sentence up to 180 days.
Probation: Probation may be available in PC 246.3(a) cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
PC 1170(h)): No. PC 246.3(a) is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a felony conviction, that is not part of a probation sentence, must be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.
Strike: PC 246.3(a) is a strike offense per California's Three Strikes law because this crime is a Serious offense (PC 1192.7). Strike offenses are subject to reduced good time credits in jail or prison and other penalty enhancements upon subsequent criminal convictions.
Credits: 50% good conduct credits available.
CIMT: PC 246.3(a) (negligence) is not likely a crime involving moral turpitude.
Firearms: Felony PC 246.3(a) convictions prohibit a defendant from owning or possessing a firearm. Misdemeanor PC 246.3(a) convictions prohibit the defendant from owning or possessing a firearm for 10 years.
Bail: $50,000 (Felony); $5,000 (Misdemeanor) (San Bernardino )
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