Gun possession or ownership rights are provided in the US Constitution, and there are many reasons why you are allowed to own, possess, or carry one. As a gun owner, the primary reason for having one is for your protection, your family, and your property. However, constitutional rights come with their share of responsibility. You must be careful when using your firearm to ensure safe usage to safeguard yourself and others from gun violence.
With gun crimes on the rise, law enforcement takes any offenses involving negligent use of a gun seriously. Are you charged with negligent discharge of a firearm in San Diego? A conviction will dent your criminal history and affect your future and firearm ownership rights. Therefore, you must take the accusations seriously and hire a gun crimes defense attorney. At the Law Offices of Anna R. Yum, we have proficient lawyers to help you defeat the charges and avoid the adverse effects of an unfavorable verdict.
Negligent Firearm Discharge Legal Definition
Per PEN 246.3, firearm discharge refers to the willful or intentional discharge or firing of a gun in a criminally or grossly negligent fashion, and firing it could have led to severe physical injuries or the death of an individual. From the legal definition, you can conclude that your negligent conduct of firearm discharge must have a recipient for it to qualify as a PEN 246.3 violation.
Criminal or gross negligence refers to the wanton disregard for human safety or life, exceeding simple negligent conduct. Gross negligence happens when you act recklessly, creating a high possibility of individuals suffering severe bodily harm or death. Therefore, when you discharge your gun in a criminally negligent fashion, it shows you do not care about human life, and a sober or ordinary person in your shoes could not have acted in the same fashion, taking into account the high risk at stake.
Per PEN 16520, a firearm is any weapon that releases projectiles through a keg or barrel, including a pistol, BB gun, BB rifle, or handgun. BB devices are included in the definition because they can cause severe harm even though they rely on spring action, air, and gas pressure to generate the force necessary to release the projectile. The metal bullet projected from a pistol or handgun barrel is known as the shell. The gun generates the power to push the shell out through combustion.
Aspects of the Gun Crime
The prosecutor or DA will secure a guilty verdict against you for negligent firearm discharge if they prove all the facts of the gun crime beyond a reasonable doubt. Also, the DA must furnish the bench or jury with sufficient evidence of your engagement in the violation to avoid a wrongful conviction. You are not guilty if the DA cannot prove any of the gun crime’s elements beyond moral certainty.
The evidentiary standard in these cases levels the playing field against the accuser. The DA has the onus of demonstrating that you committed the alleged gun offense and back their assertions with sufficient evidence. Therefore, before lodging a criminal charge against you, the prosecutor gathers proof from various sources, like surveillance footage, witness statements, or forensic sources, including DNA or fingerprint proof.
Once the prosecutor makes their case, it will be your turn to disapprove the accusations and create reasonable doubt in the minds of the jury or the bench about the accusation. The aspects of negligent gun discharge the DA should demonstrate are:
You Willful Fired the BB Device or Gun
A critical aspect of negligent firing the prosecutor must prove is that your actions were willful. They must show you purposely discharged the weapon and fired projectiles in the sky, warning shorts, or did not aim at the people. If you fired the loaded gun, you are guilty of a PEN 246.3 violation even if you aimed away from the crowd.
Typically, the prosecutor demonstrates to the court your actions were intentional through cross-examination. For instance, they will ask you, the defendant, to reveal whether you were aware the weapon was loaded or packed when you discharged it. Your response will paint a picture to the court of whether you knew the firearm was loaded and will depend on your case’s circumstances. If the case facts show you removed the firearm’s safety feature before shooting, the DA will infer that you had knowledge the weapon was loaded. However, you are innocent if evidence points out that you did not know the weapon was loaded or reasonably believed the firearm was unloaded.
Also, the prosecutor will refer to your actions leading to the shooting to determine if your actions were willful. For instance, when you were in a public setting and decided to display your firing prowess to friends, the prosecutor would deem your actions deliberate. If, in the process, one of the bullets strays, injuring or killing a bystander, you will be accountable for the shooting.
You Discharged the Weapon with Gross Negligence
You are innocent of negligent firing if your actions were only negligent. The DA must show you portrayed criminal or gross negligence during the alleged gun crime, creating a high possibility of people sustaining great bodily harm or death, and that a sober person in your position would have been aware that acting that way created a high threat of death or substantial harm. The DA must demonstrate that your conduct was more than standard negligence, misjudgment, or carelessness.
If your conduct is categorized as gross or criminal negligence, your actions were unconventional, and you made extraordinary misjudgments that a sober person could not have portrayed when in your situation. The DA will show you were grossly or criminally negligent if the firearm discharge was reckless and in a place likely to injure people or cause death. For instance, if your charges stem from an alleged shooting incident in a funfair, then your actions will be deemed gross negligence because firing the weapon puts many people at risk of harm or death from a stray projectile.
Furthermore, the DA should prove that you were indifferent to the repercussions of your behavior and showed wanton disregard or callousness for life. Whether the prosecutor will prove this depends on the witness’s testimony and the case’s facts. For instance, if, after shooting in the sky the first time in the amusement park, people attempted to dissuade you, but you continued firing, even though away from the people, it will be easy for the DA to show you were criminally negligent.
The Negligent Discharge Increased the Risk of Loss of Life or Severe Injuries
Shooting your weapon only amounts to a PEN 246.3 violation if there is a possibility the firing could have hurt someone. Many people who face these charges do not directly aim at an individual when firing. They shoot in the sky or air, away from people. Nevertheless, the prosecutor only has to show that the firing increased the possibility of someone being injured or killed by a stray projectile.
Using hypothetical situations, the DA demonstrates the possibility of harm or loss of life. The court does not consider the probability of the hypothetical situations demonstrated happening. The focus is on the negligent discharge of a weapon, increasing the risk of people sustaining injuries. Placing people in harm’s way is sufficient to make you guilty of a PEN 246.3 violation. Nevertheless, when an individual sustains a great physical injury or is killed from criminally negligent behavior, it will be easier for the DA to secure a guilty verdict if they can demonstrate the shooting was the direct cause of the harm. Testimony from the victim or eyewitnesses can link you to the harm. Surveillance footage from the acne could also be used as evidence.
Negligent Discharge Penalties
Firearm discharge is a wobbler offense. The DA can lodge the charge as a misdemeanor or felony, contingent on the case’s facts and your criminal record. One of the exceptions of PEN 246.3 is if the projectile is fired from a BB device instead of a pistol or handgun. The offense is a straight or direct misdemeanor if the firing is done with a BB gun.
When the court finds you guilty of misdemeanor charges, the penalties you will face are:
- Summary or misdemeanor probation
- At most $1,000 in court fines
- At most twelve months of county jail confinement
If the DA prefers felony charges, the legal penalties upon conviction are:
- At most $10,000 in court fines
- 16, 24, or 36 months of jail incarceration under the realignment program
- Formal probation
You will face these penalties even if the negligent conduct does not lead to injuries or death, as the law emphasizes grossly negligent behavior over its consequences. Nevertheless, the consequences will be less stringent if no one is harmed.
Additional penalties of a guilty verdict include a ban from possessing a firearm. A misdemeanor guilty verdict will result in a ten-year ban from gun ownership, while a felony guilty verdict will result in a lifetime ban.
You face a felony with a firearm charge if you were previously denied gun ownership rights because of a prior conviction.
Penal Code 677, otherwise called the Three Strikes Statute. It provides penalty enhancement for severe felonies where your criminally negligent conduct increases the risk of great physical injuries. Additionally, you will face penalty enhancement under this statute if you have more than one criminal conviction for a violent or severe felony. The penalty enhancement includes:
- Thrice your current sentence if you have at least two prior convictions for violent or severe felony
- Double the penalties for the current offense if you have a prior for the crimes prescribed under Penal Code 667
You will earn a strike on your record for a conviction for negligent discharge if you are a first-time offender. When it is your second guilty verdict for the violation or any other severe or violent felony, you will earn a second strike leading to 25 years to life confinement.
Penalty Enhancement
You will face sentence enhancement after a PEN 246.3 violation under the following circumstances:
- If the violation is done in connection with a criminal gang as prescribed under PEN 186.22. A conviction for negligent discharge in these circumstances will result in an additional and consecutive twenty-four to sixty months of jail incarceration.
- If you use a gun to accomplish a felony offense as prescribed by Senate Bill (SB) 620
However, you must know that a PEN 246.3 violation is not listed among the felonies under the 10-20 life use of a firearm statute under PEN 12022.5.
Immigration Consequences
A PEN 246.3 infringement is a crime of moral turpitude, meaning that a guilty verdict, whether for a misdemeanor or felony, will lead to immigration repercussions. As an alien, you risk deportation or being designated as inadmissible. If you are outside the US, you will be denied reentry.
Legal Defenses
When you face charges under PEN 246.3, you should contact an experienced criminal defense attorney immediately to start preparing your defenses. The defenses your attorney will craft depend on your case’s circumstances. Your defense lawyer does not need to prove that you did not discharge the weapon. They just have to create reasonable doubt in the judge’s or jury’s minds about you committing the crime, thus creating reasonable doubt.
You must furnish your attorney with all the details surrounding the incident and arrest to enable them to craft persuasive arguments that will result in a favorable verdict. The viable defenses your attorney will assert are:
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You Accidentally Discharged the Loaded Weapon
The main aspect of the crime the DA must demonstrate is that your actions to discharge the weapon were deliberate. Therefore, you can avoid a guilty verdict by claiming your behavior was accidental or unintentional or that you were unaware the weapon was loaded. It will be easy for your attorney to use this argument because the prosecutor normally finds it difficult to demonstrate your intent or state of mind when you discharged the weapon, as several reasons exist as to why you could have believed the weapon was unloaded.
For instance, your attorney can assert that the gun belonged to another party that had left it unattended, making you unaware of whether it was loaded. So, you could not have formed criminal intent to negligent discharge the firearm when you were not sure it was packed. Because you could not form criminal intent to harm or kill, you are innocent of the charges.
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You Were Defending Yourself or Others
You are innocent of the charges if you were defending yourself or others. You can use this defense if you discharge the weapon to prevent an impending risk of harm from another party. However, the defense is only held in court if you meet the requirements for self-defense.
The first requirement is that you reasonably believe you or another person was in imminent threat of harm. For instance, your attorney can argue that you were home alone resting when you heard strange noises in the back of the house that made you believe someone was trying to break in reasonably. So, you became agitated or alarmed, which caused you to use yourself to fire an ominous shot.
When a stray projectile hits the party you were defending yourself against and sustains injuries, you can protect yourself by asserting that you were entitled to defend yourself or your property and acted reasonably.
Similarly, you must demonstrate that shooting your weapon was the best way to safeguard yourself and your property. You should show that using the weapon was a reasonable and equal way to repel the threat. You would be guilty if you were aware the noise was from raccoons but still decided to fire warning shots that ended up injuring or causing the death of an individual.
The force used in retaliation to the threat must be sensible and proportionate. If, for instance, you fire an ominous or warning shot and you are confident the intruder fled but continues firing, the court will consider your actions as using excessive and disproportionate force, making you liable for any harm resulting from your actions.
If you want to use self-defense as an argument, you must disclose all the case details to the attorney without leaving any information out. That way, the attorney will prepare sufficiently to use the defense and ensure case dismissal.
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The Discharge Did Not Cause an Actual Threat of Harm of Death
The DA depends on hypothetical situations to demonstrate the possibility of someone sustaining injuries due to negligent discharge. Therefore, if the shooting happened in a remote location with no people or very few people where there was no risk of anyone suffering harm or death, you are innocent. Whether or not the defense will work depends on the people present and the location. If the firing happens in a place without human interaction, your attorney can assert that your actions could not have resulted in harm or loss of life. However, if you shoot in a public park or populated neighborhood, the assertion will not hold even if no one was around during the incident.
Related Offenses
The DA can charge you with firearm discharge in addition to or alongside offenses like:
- Shooting at an inhabited structure or occupied vehicle
- Murder if a stray projectile kills another party
- Brandishing a weapon
- Unregistered firearm possession
- An ex-felon possessing a gun
Action to Take After Accidental Firearm Discharge
With the help of an attorney, you can prevent a wrongful conviction when you discharge a weapon accidentally. Accidents happen, and you should not face criminal consequences for a genuine misjudgment or accident. This is why even the law requires the prosecutor to prove your conduct is intentional or willful. However, if you are not careful and choose to represent yourself because you believe you are innocent, you could end up with a wrongful conviction. Therefore, understanding what to do after an accidental gun discharge can save you from legal trouble. The action you should take includes:
Evaluate the Situation
If you accidentally discharge your firearm, the first step should be to assess or review the situation. Check if you have injured or killed anyone. When injuries or death are involved, call 911. Doing so will ensure the emergency response team arrives on time to save lives. Besides, you should check if your gun is still loaded to prevent another discharge. Once you confirm the weapon is unloaded, place it where it cannot cause further harm.
Analyze the Damages
Apart from injuries, a projectile discharged from your weapon can cause property damage depending on the location where it happens. Also, damages depend on the kind of weapon and the distance. Check to confirm if the gun caused damages and the extent of the damages to avoid liability for harm you did not cause.
Contact a Defense Lawyer
If your actions result in death, injuries, or property damage, the penalties on the line are life-changing. Luckily, you can protect yourself, your rights, your freedom, and your future by contacting an experienced criminal defense attorney knowledgeable about gun offenses like yours. The attorney will provide legal guidance and defend you in court for a fair verdict.
Do Not Repeat the Same Mistake in the Future
Whether or not the negligent discharge is accidental, it will have consequences. Therefore, take the necessary measures to prevent similar accidents in the future. A second offense will attract harsher repercussions, and the court is less likely to be convinced by your defenses, increasing the possibility of a guilty verdict.
Lastly, consult with your attorney to understand the legal conditions, limitations, and rights depending on the discharge location and the people present or likely to be hurt.
Find a Competent Gun Crimes Defense Attorney Near Me
California allows individuals 18 or older to own a firearm legally. Also, the state has gun statutes that guide how to use or carry the weapon. Unfortunately, you could violate gun use rules by discharging your gun with criminal negligence, risking endangering lives and property. Understanding the situations that can put you in legal trouble and how to resolve them after the negligent discharge of a firearm is encouraged. A defense attorney is the best person to explain and defend your situation. At the Law Offices of Anna R. Yum, we have the experienced attorneys you need for a fair outcome in your case. Call us at 619-493-3461 to speak to our gun crimes defense attorneys in San Diego.
