Negligent Discharge of a Firearm in San Diego
Imagine that you just purchased a new firearm, wanting to show it off, you take it outside for your friends to see you shoot some rounds. No one gets hurt but next thing you know, you are facing charges for the negligent discharge of a firearm. In San Diego these type of cases are prosecuted as gross negligence simply because the act of discharging a firearm makes it possible for people to get hurt. At Monder Law Group we have vast experience with gun cases and a whole team of professionals at your disposal. We do not rely on the discovery provided by the government, instead we find our own evidence by sending our private investigators to check out the place and time where the incident occurred and talk to potential witnesses. Our expert witnesses use this evidence to demonstrate that no likelihood of danger of injury or death existed. Without this element, it is very difficult for the prosecution to prove the gross negligence that is required for a conviction of negligent discharge of a firearm. You do not have to face these charges alone, contact us now, we are ready to provide you with the necessary answers to begin strategizing your best defense!
Understanding Gross Negligence
Ordinary negligence is carelessness or a mistake in judgment. Gross negligence is more than ordinary negligence. California State law defines gross negligence as a clear departure of the way that a reasonable person would act in the same situation and that amounts to disregard for human life or indifference to the consequences of one’s actions. Negligent discharge of a firearm under Penal Code section 246.3 requires gross negligence. This means that discharging a firearm will only amount to a negligent discharge if you acted in a manner that a reasonable person would have known was reckless and in a way that created a high risk of great bodily injury or death to another person. It is important to note that the risk of harm does not have to be certain or even likely, there only has to be a possibility that great bodily injury or death could have occurred.
Understanding Penal Code Section 246.3
Penal Code section 246.3 makes it clear that “any person who, except in self-defense, willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170”. Under this code section a firearm is any device designed to be used as a weapon, that discharges a projectile through a barrel by the force of a combustion.
In order to prove that you negligently discharged a firearm in violation of Penal Code section 246.3, the prosecutor in your case must prove beyond a reasonable doubt that you:
Intentionally discharged a firearm and
Did so in a grossly negligent manner and
The discharge could result in the injury or death of another and
Did not act in self-defense or in the defense of others.
Negligent Discharge of a Firearm is a Wobbler Offense
In California, the negligent discharge of a firearm under Penal Code section 246.3 is considered a wobbler offense. Wobbler offenses are crimes that can be charged as either a misdemeanor or a felony.
The issuing district attorney makes the determination to wobble up or down the charges based on the following factors:
The circumstances of the allegations;
The severity of the offense;
Whether you took responsibility for your actions; and
Your prior criminal record.
Application of Penal Code Section 17(b) to Wobbler Convictions
Pursuant to California Penal Code section 17(b), “when a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances…(3) When the court grants probation to a defendant without imposition of a sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor”. This means that convictions for wobbler offenses may be eligible for a reduction from a felony to a misdemeanor conviction if at sentencing the judge granted probation for the underlying offense and you successfully complete the probation period. If the judge grants the reduction of your conviction, the offense will now be considered a misdemeanor on you criminal record and it would be as if you had never been convicted of a felony.
The judge makes the determination to reduce a conviction from a felony to a misdemeanor based on the following factors:
Your prior criminal history;
The severity of the offense;
Whether you pose a threat to the community;
The basis for your request; and
The positive changes that you have made since your conviction.
Potential Penalties for Misdemeanor Negligent Discharge of a Firearm
If negligent discharge of a firearm is wobbled down to a misdemeanor you could face:
Maximum sentence of up to one (1) year in county jail
Fine of up to $1,000
Potential Penalties for Felony Negligent Discharge of a Firearm
However, if negligent discharge of a firearm is wobbled up to a felony you could face:
A sentence of sixteen (16) months, two (2) years, or three (3) years in county jail
Fine of up to $10,000
Strike under California’s 3 Strikes law 10,000
Loss of firearm privileges
Implications of California Three Strikes Law for Felony Negligent Discharge of a Firearm
Pursuant to California Penal Code section 667(e)(1), “any person convicted of a serious felony who previously has been convicted of a serious felony in California or of an offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively”. This means that if you are found guilty of a felony for negligent discharge of a firearm, illegal possession of weapons this will be considered a serious felony conviction in California and will count as a strike on your criminal record. Accordingly, if you already have a strike on your criminal record or you commit a subsequent serious or violent felony, the judge has discretion to impose a sentence that is twice what you otherwise would have faced. Once you reach a third strike on your criminal record, regardless of the length of time between a prior serious or violent felony and the current serious you may be sentenced anywhere from twenty-five (25) years to life.
Gang Affiliation Sentencing Enhancement
An enhancement offense is one whose commission alone increases the penalties for the underlying crime. In consideration of the seriousness of gang related negligent discharge of firearms and felon in possession of firearm California has established gang affiliation sentencing enhancements. Pursuant to Penal Code section 186.22, “any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of the gang, shall be punished by imprisonment in a county jail for a period not to exceed one year or by imprisonment in state prison for 16 months, two or three years”.
However, before these gang enhancements can be applied to your sentence, the prosecution has the burden to prove beyond a reasonable doubt:
All elements for the negligent discharge of a firearm under Penal Code section 246.3;
That you actively participated in a criminal street gang;
That you knew that its members engage in or have engaged in a pattern of criminal gang activity; and
That you willfully promoted, furthered, or assisted in felonious criminal conduct by members of that gang.
Defenses for Negligent Discharge of a Firearm
These are some of the criminal defenses that we can assert on your behalf to help you overcome the charges under Penal Code section 246.3:
You acted in self-defense.
A valid self-defense claim requires that you have the reasonable belief that you or someone else was in imminent danger of suffering bodily injury. That your belief that you were defending yourself or another from imminent harm was reasonable when you discharged the firearm. That you did not use any more force than what was necessary to protect yourself or another from the imminent harm.
You lacked the necessary intent.
You were not aware that the firearm was loaded or it discharged by accident.
There was no possible danger of risk of death or injury to anyone.
Negligent Discharge of a Firearm Criminal Lawyer in San Diego
The federal constitution established that all citizens are guaranteed the right to keep and bear arms whenever they see fit. However, the state of California and its harsh gun laws constrain our right to bear arms by imposing severe penalties for relatively minor firearm offenses. That is why it is imperative that if you or a loved one is at risk of losing your second amendment right, you hire a skilled san diego criminal attorney experienced with gun laws in the state of California. You need someone that truly understands how our second amendment right works in California so that you may be protected from wrongful prosecution. Attorney Vik Monder is an active gun enthusiast like you, he knows what your second amendment rights mean to you and will do everything in his power to protect them.