California Penal Code § 246.3: Negligent Discharge of a Firearm

Negligent discharge of a firearm, under California Penal Code § 246.3, is not just a gun offense. It is a highly subjective charge that prosecutors in Los Angeles and Orange County regularly use to escalate minor incidents into life-altering felonies. Unlike crimes involving targeted violence, PC 246.3 criminalizes the possibility of harm, making it dangerously broad and susceptible to overcharging.

At Power Trial Lawyers, we understand that many people charged under PC 246.3 were never aiming at anyone. Some fired celebratory shots. Others acted out of panic. And some never fired a weapon at all, yet find themselves falsely identified or wrongfully accused. In this article, we break down how negligent discharge is prosecuted in California, how local prosecuting agencies handle these cases, and how we beat them in court or at the negotiating table.

1. What Is PC 246.3? Understanding the Statute
2. Key Legal Elements Prosecutors Must Prove
3. Differences Between PC 246.3, PC 246, and PC 417
4. Penalties: Is PC 246.3 a Felony or Misdemeanor?
5. Enhancements That Increase Prison Exposure
6. Common Defenses to PC 246.3 Charges
7. Jury Instructions: CALCRIM 965 and Beyond
8. Regional Charging Trends: LA, OC, San Bernardino
9. Immigration, Gun Rights, and Expungement Risks
10. Real Case Examples and Legal Outcomes

1. What Is PC 246.3: Negligent Discharge of a Firearm? Understanding the Statute

California Penal Code § 246.3 makes it a crime to willfully discharge a firearm in a grossly negligent manner that could result in injury or death. What sets this statute apart is that it doesn’t require a victim or a specific target—it criminalizes risk. According to People v. Ramirez, gross negligence means conduct that goes beyond mere carelessness—it must reflect a conscious disregard for human life or safety.

This means that discharging a gun into the air during New Year’s celebrations, firing near an open area in fear, or even an accidental misfire in a residential area can all expose someone to PC 246.3 liability.

Importantly, PC 246.3(b) extends this same criminal liability to BB guns, airsoft rifles, and pellet weapons—something many defendants don’t realize until they’re facing a booking number and a criminal case.

2. Key Legal Elements Prosecutors Must Prove

To secure a conviction for Negligent Discharge of a Firearm under PC 246.3, the District Attorney must prove:

• You intentionally discharged a firearm or BB device;
• The discharge was willful—not an accident or malfunction;
• You acted in a grossly negligent manner; and
• Your conduct could have caused injury or death.

This is where many cases begin to unravel under legal scrutiny. At Power Trial Lawyers, we challenge the prosecution’s ability to prove intent and gross negligence, often leveraging forensic experts, ballistics evidence, or timeline discrepancies to undercut these critical elements.

3. Differences Between PC 246.3, PC 246, and PC 417

Understanding how prosecutors choose their charges is vital:

• PC 246 (Shooting at an Inhabited Dwelling): Requires targeted intent—e.g., firing at a house, vehicle, or building.
• PC 246.3 (Negligent Discharge): Broader. No target needed. Risk alone is enough.
• PC 417 (Brandishing a Firearm): No discharge required. Merely waving or displaying in a threatening manner.

If the prosecution cannot prove that you intended to hit a structure or person, they often pivot to PC 246.3. Our role is to force them to prove more than just potential danger—we demand real evidence.

4. Penalties: Is PC 246.3 a Felony or Misdemeanor?

PC 246.3 is a wobbler offense:

• Misdemeanor: Up to 1 year in county jail and/or a $1,000 fine.
• Felony: 16 months, 2 years, or 3 years in state prison; formal probation; potential strike under California’s Three Strikes Law if coupled with enhancements.

Felony firearm convictions carry devastating consequences: loss of Second Amendment rights, immigration consequences, and an indelible criminal record.

We fight to downgrade every Negligent Discharge of a Firearm under PC 246.3 felony to a misdemeanor—or better yet, get it dismissed entirely through factual or procedural leverage.

5. Enhancements That Increase Prison Exposure

Many clients don’t realize how easily enhancements can turn a simple PC 246.3 into a prison-bound case:

• PC 12022.5 (use of firearm during a felony)
• PC 12022.53 (great bodily injury or discharge enhancements)
• PC 186.22 (gang enhancement)

We file targeted Romero motions to strike prior convictions and move to bifurcate enhancements to keep prejudicial allegations from influencing the jury.

6. Common Defenses to Negligent Discharge of a Firearm per PC 246.3 Charges

At Power Trial Lawyers, we’ve used these defenses to win PC 246.3 cases:

• Accidental Discharge: If the trigger pull wasn’t intentional or the gun malfunctioned, the entire charge fails.
• No Gross Negligence: Even if there was a discharge, was it truly reckless, or simply poor judgment?
• Self-Defense: In People v. Lee, courts reaffirmed the right to use force when faced with imminent danger.
• Misidentification or Fabrication: Eyewitness errors, grainy footage, and false accusations are common in neighborhood incidents.

We use a blend of field investigation, expert testimony, and aggressive cross-examination to attack the prosecution’s theory at every turn.

7. Jury Instructions: CALCRIM 965 and Beyond

CALCRIM 965 provides the standard jury instruction for negligent discharge:

• Jurors must find the defendant willfully discharged the firearm;
• The act was done with gross negligence;
• It could have resulted in injury or death.

Our cross-examination strategy often highlights how these elements are speculative, not evidence-based. We argue that mere noise complaints or post-hoc assumptions by officers are insufficient to meet these thresholds beyond a reasonable doubt.

8. Regional Charging Trends: LA, OC, San Bernardino

• Los Angeles County: The DA’s office often files PC 246.3 as a felony, especially in South LA and gang-policed areas. Even celebratory gunfire with no harm can result in a 3-year prison offer.
• Orange County: Offers more discretion. With strong mitigation, we’ve seen cases dropped to PC 417 or resolved through diversion under PC 1001.95.
• San Bernardino: Zero tolerance for firearm discharge. Even first-time offenders are often overcharged. Judicial temperament is key.

We build location-specific defense strategies based on the courthouse, the judge, and the assigned prosecutor.

9. Immigration, Gun Rights, and Expungement Risks

• Non-U.S. citizens: A PC 246.3 felony is often considered a deportable crime involving moral turpitude.
• Gun Rights: Felony PC 246.3 convictions trigger lifetime bans federally. Misdemeanors may still disqualify under CA law.
• Expungement: Possible under PC 1203.4 for misdemeanors or probation-completed felonies. But expungement doesn’t restore firearm rights.

We proactively discuss these consequences with clients and pursue every available post-conviction relief channel, including motions for early termination of probation or reduction under PC 17(b).

10. Real Case Examples and Legal Outcomes

Compton, 2024: Client accused of drive-by-style shooting. No casings matched. Through ballistics expert and GPS data, we secured full acquittal.

Orange County, 2023: Client discharged BB gun during backyard dispute. DA charged PC 246.3(b) as felony. We presented psychological mitigation and proof of safe firing direction—reduced to misdemeanor PC 417 with informal probation.

Los Angeles, 2022: Arrest for celebratory New Year’s gunfire. Filed pretrial suppression motion showing illegal search. Charges dismissed under PC 1538.5.

Conclusion + Call to Action:

If you’ve been arrested or charged with negligent discharge under Penal Code § 246.3, you are facing more than a gun case—you are facing a reputation-damaging, life-altering prosecution with steep penalties. Prosecutors treat these charges seriously, even when no one is injured. You need a legal team that understands how to deconstruct the government’s narrative and reframe the truth.

At Power Trial Lawyers, we don’t just know the law—we know how it’s practiced in every courthouse in Los Angeles, Orange County, and beyond. From pre-filing intervention to trial strategy and expungement, we’ve helped hundreds of people walk away from PC 246.3 charges with their record—and future—intact.

Call us today for a confidential consultation. Let us protect your freedom, your rights, and your name.