Negligent Discharge of Firearm (PC 246.3)

A single gunshot on a holiday weekend. A neighbor’s panicked 911 call. Now you’re facing criminal charges that could follow you for years. Here’s what California law actually says about negligent discharge and where your defense begins.

Most people charged under Penal Code 246.3 never intended to hurt anyone. Celebratory gunfire on New Year’s Eve, a round fired during a heated moment, a discharge while handling a weapon at home. Whatever the circumstances, the consequences of a conviction are serious, and the difference between a felony and a misdemeanor often comes down to the quality of your defense.

The Nieves Law Firm Criminal Defense Attorneys has defended weapons charges across the Bay Area, from Oakland to Fremont to San Jose. Our team understands how Alameda County prosecutors approach these cases and what it takes to fight for the best possible outcome. If you’re facing a negligent discharge charge, the earlier you take action, the more options are on the table.

Schedule a consultation to discuss your PC 246.3 case with our defense team.

What Penal Code 246.3 Actually Prohibits

Penal Code 246.3, subdivision (a), makes it a crime to “willfully discharge a firearm in a grossly negligent manner which could result in injury or death to a person.”¹ The statute also covers BB devices under subdivision (b), though that version is a misdemeanor only.²

A few things stand out about this law. First, no one has to actually get hurt. The prosecution only needs to show that someone could have been injured or killed. Second, the statute requires more than simple carelessness. It demands “gross negligence,” which is a higher legal standard that creates real defense opportunities. Third, the word “willfully” means the discharge itself was intentional, not that you intended to break the law or harm anyone.³

This distinction matters because it separates true accidents (the gun slipped, a mechanical failure) from intentional discharges done recklessly. Understanding where your situation falls on that spectrum is the starting point for building a defense.

How Prosecutors Build a PC 246.3 Case

Under CALCRIM No. 970, the prosecution must prove three elements beyond a reasonable doubt to secure a conviction.⁴

The discharge was willful

The prosecution needs to establish that you fired the weapon on purpose, not that it went off by accident. “Willfully” means you acted deliberately or on purpose.⁵ If a firearm discharged because you dropped it, because of a mechanical defect, or because of an unintentional trigger pull, this element fails. Prosecutors typically rely on witness testimony, physical evidence (shell casings, bullet trajectory), and your own statements to establish willfulness.

The manner was grossly negligent

This is where most PC 246.3 cases are won or lost. Gross negligence is not the same as ordinary carelessness. Under the jury instruction, a person acts in a grossly negligent manner when they act “in a reckless way that creates a high risk of death or great bodily injury” and “a reasonable person would have known that acting in that way would create such a risk.”⁶ The instruction specifically states that gross negligence is “more than ordinary carelessness, inattention, or mistake in judgment.”⁷

The gap between ordinary negligence and gross negligence is where skilled defense work happens. Firing a weapon in a densely populated neighborhood looks very different from discharging one on rural property with no structures nearby. Context shapes everything.

The discharge could have resulted in injury or death

The prosecution does not need a victim. They need to show that the circumstances created a realistic possibility of harm. Firing into the air in a crowded area satisfies this easily. Firing at a dirt berm on private acreage with no neighbors in range may not. Defense attorneys can present evidence about the location, direction of fire, time of day, and whether any person was realistically within the zone of danger.

The Gross Negligence Standard and Why It Matters for Your Defense

The gross negligence requirement in PC 246.3 is not just a legal technicality. It is the single most important battleground in these cases, and it deserves close attention.

California law recognizes a clear hierarchy of culpability when it comes to negligent conduct. At the bottom is ordinary negligence: a lapse in judgment, a moment of inattention, the kind of mistake anyone could make. Above that is gross negligence: conduct so reckless that a reasonable person would recognize it creates a high risk of death or serious injury. Above that is criminal recklessness and, ultimately, intentional conduct.

PC 246.3 draws the line at gross negligence. That means the prosecution cannot convict you simply by showing you were careless with a firearm. They must prove your conduct crossed over into recklessness that any reasonable person would recognize as dangerous.⁸

In practice, this standard gives defense attorneys significant room to work. Consider two scenarios. In the first, a person fires a handgun into the air during a block party in a residential neighborhood. In the second, a person discharges a rifle while target shooting on their own rural property, not realizing a hiker was on a trail 300 yards away. Both involve a firearm discharge that arguably could have hurt someone. But the level of negligence is fundamentally different, and that difference can determine whether you face a conviction or a dismissal.

When our team analyzes a PC 246.3 case, the first question we ask is whether the prosecution can actually prove gross negligence given the specific facts. Factors like the location, time of day, population density, direction of fire, and the defendant’s knowledge of the surroundings all matter. Prosecutors sometimes overcharge these cases, treating any discharge as grossly negligent without carefully examining whether the facts support that standard.

Penalties for Negligent Discharge

Felony Penalties (Subdivision (a))

PC 246.3(a) is a wobbler offense, meaning prosecutors can file it as either a felony or a misdemeanor.⁹

Felony sentencing falls under Penal Code 1170(h), which means time is served in county jail rather than state prison.¹⁰ This is part of California’s realignment structure for non-violent, non-serious, non-sex offenses.

BB Device Penalties (Subdivision (b))

Negligent discharge of a BB device under subdivision (b) is always a misdemeanor, carrying up to one year in county jail.¹¹

What Influences the Filing Decision

Whether the Alameda County District Attorney files your case as a felony or misdemeanor depends on several factors: how close people were to the discharge, the time of day, the density of the neighborhood, your criminal history, and whether the case started as a more serious charge like shooting at an inhabited dwelling (PC 246) or assault with a firearm (PC 245(a)(2)). Cases that originate as those more serious charges and get reduced to PC 246.3 are sometimes still filed as felonies to preserve leverage.

Defense Strategies That Work in Negligent Discharge Cases

Accident Defense: The Discharge Was Not Willful

If the firearm went off unintentionally, the willfulness element fails. This applies to dropped weapons, mechanical malfunctions, and unintentional trigger pulls. Under CALCRIM No. 3404, a person is not guilty of a crime if they acted without criminal intent, were engaged in lawful conduct, and were acting with ordinary caution.¹² A gun owner cleaning a weapon that discharges due to a defective safety mechanism, for example, may have a strong accident defense.

The Conduct Was Negligent, Not Grossly Negligent

This is the defense we pursue most aggressively in PC 246.3 cases. If your conduct amounted to ordinary carelessness rather than reckless disregard for human life, the gross negligence element is not satisfied.¹³ Consider a hunter who fires at game and doesn’t realize a trail is nearby. That may be careless, but it is not necessarily the kind of reckless conduct that “creates a high risk of death or great bodily injury.”

No Realistic Risk of Injury

The prosecution must prove the discharge could have resulted in injury or death. If the firearm was discharged in an extremely isolated location with no people in range, this element may not be met.¹⁴ Defense teams can present evidence about geography, population density, bullet trajectory, and the physical impossibility of the round reaching any person.

Self-Defense or Lawful Authorization

The statute explicitly carves out conduct “authorized by law.”¹⁵ Lawful self-defense under CALCRIM No. 3470 qualifies.¹⁶ So does authorized activity at a shooting range, lawful hunting in designated areas, or defense of property. If you discharged a firearm because you reasonably believed you or someone else faced imminent danger, the statute does not apply.

Suppression of Evidence (Fourth Amendment Violations)

Police frequently respond to “shots fired” calls and conduct warrantless searches of homes, vehicles, and persons. If the firearm or other evidence was recovered through an unlawful search, the defense can move to suppress that evidence under the Fourth Amendment. Without the gun, residue evidence, or shell casings, the prosecution’s case may collapse entirely.

Challenging Identification

In cases involving multiple people, nighttime incidents, or limited witness visibility, the prosecution may struggle to prove you were the person who discharged the weapon. Circumstantial evidence like being nearby or owning a firearm is not enough by itself to meet the beyond-a-reasonable-doubt standard.

Wobbler Reduction to Misdemeanor

Even when the facts are difficult, our team fights to get felony charges reduced to misdemeanors under Penal Code 17(b).¹⁷ Factors that support reduction include no prior criminal record, no injuries, cooperation with law enforcement, stable employment, community ties, and mitigating circumstances surrounding the incident. The difference between a felony and misdemeanor conviction affects everything from your career to your firearm rights.

PC 246 vs. PC 246.3: A Critical Distinction

One of the most consequential aspects of a negligent discharge case is its relationship to Penal Code 246, which criminalizes shooting at an inhabited dwelling or occupied vehicle.¹⁸

PC 246 is a serious felony and a strike offense under California’s Three Strikes law.¹⁹ A conviction carries three, five, or seven years in state prison and counts as a strike on your record permanently.²⁰ PC 246.3, by contrast, is a wobbler that is not classified as a serious or violent felony and does not count as a strike.

This distinction creates one of the most important plea negotiation dynamics in weapons cases. Clients who are initially charged with shooting at an inhabited dwelling under PC 246 can sometimes negotiate a reduction to negligent discharge under PC 246.3. That single reduction can mean the difference between a strike on your record and a wobbler that can potentially be reduced to a misdemeanor.

Our team regularly handles cases where the initial charge is PC 246 and the goal is to negotiate down to PC 246.3. This requires demonstrating to prosecutors that the evidence does not support the more serious charge, or that mitigating circumstances justify the reduction. Having attorneys who understand this dynamic and have experience negotiating these reductions in Alameda County courtrooms is critical.

Collateral Consequences Beyond the Courtroom

Firearm Rights

A negligent discharge conviction has direct consequences for your right to own or possess firearms. A felony conviction triggers a lifetime firearms ban under both federal law (18 U.S.C. § 922(g)(1)) and California law (Penal Code 29800).^{21 22} Being classified as a felon in possession of a firearm after a prior felony conviction carries its own serious penalties. A misdemeanor conviction under PC 246.3 triggers a 10-year firearms prohibition under Penal Code 29805.²³

For working professionals in security, law enforcement, or the military, losing firearm rights can end a career. Hunters and sport shooters also face significant lifestyle consequences. This is one of the strongest reasons to fight for a dismissal or a charge reduction that avoids a firearms-prohibiting conviction altogether.

Employment and Professional Licensing

A felony conviction creates barriers to employment in many industries and can trigger professional licensing consequences for nurses, teachers, contractors, and others with state-regulated licenses. Even a misdemeanor weapons conviction can raise red flags on background checks and affect security clearances.

Immigration Consequences

Non-citizens face particular risks with firearms offenses. A conviction for PC 246.3 may be classified as a deportable “firearm offense” under INA § 237(a)(2)(C), regardless of whether it is charged as a felony or misdemeanor.²⁴ A felony conviction may also qualify as a “crime involving moral turpitude” or an “aggravated felony” depending on the sentence imposed.

The Nieves Law Firm Criminal Defense Attorneys works closely with immigration attorneys on cases where criminal charges intersect with immigration status. If you are not a U.S. citizen, it is essential that your defense attorney understands these consequences before any plea is entered.

Post-Conviction Relief

If you are convicted of PC 246.3 as a misdemeanor, you may be eligible for expungement under Penal Code 1203.4 after completing probation.²⁵ If convicted as a felony, you may petition for reduction to a misdemeanor under Penal Code 17(b) and then seek expungement.²⁶ These options do not restore firearm rights automatically, but they can help with employment and licensing barriers.

Quick Reference

Where Your Case Will Be Heard

If your case arises in Alameda County, it will likely be heard at the Rene C. Davidson Courthouse at 1225 Fallon Street in Oakland for cases originating in Oakland and surrounding areas. Cases from the southern part of the county may be assigned to the Fremont Hall of Justice, while central county cases go through the Hayward Hall of Justice.

Our attorneys appear regularly in all three courthouses and understand how different judges and prosecutors in each facility approach weapons cases. That familiarity with local court culture is something that cannot be replicated by a firm that parachutes in from outside the area.

Why Choose The Nieves Law Firm for Your PC 246.3 Case

A negligent discharge charge can threaten your career, your firearm rights, and your reputation. Our team of attorneys brings the resources of one of the largest criminal defense teams in the Bay Area to every weapons case we handle. We know how to fight for wobbler reductions, challenge the gross negligence standard, and negotiate with prosecutors who are familiar with our work in Alameda County courtrooms.

Whether your case involves celebratory gunfire, a self-defense situation, or a charge that started as something more serious like PC 246, we build a defense strategy tailored to your specific circumstances and your goals.

Don’t let a weapons charge define your future. Contact our team today to discuss your negligent discharge case and take the first step toward protecting your rights, your freedom, and your future.