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Discharging a Firearm Laws (PC 246_247) in California - IE Criminal Defense

I. California Penal Code 246/247: Discharging a Firearm in House/Vehicle


Legal Definition: Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited house car, or inhabited camper.

For a person to be convicted of a violation of PC 246, the prosecution must prove the following:

  1. You willfully and maliciously shot a firearm;
  2. You shot the firearm at an inhabited house/inhabited house car/inhabited camper/occupied building/occupied motor vehicle/occupied aircraft; AND
  3. You did not act in self-defense/in defense of someone else.

II. What does this mean?


Someone commits an act willfully when he or she does it willingly or on purpose. Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, defraud, annoy, or injure someone else. A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.

This is an entirely different charge that Assault with a Deadly Weapon, because although it does require a weapon, it adds the element that you fired your gun into an inhabited dwelling; where people live. A house/house car/camper is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged shooting.

III. Penalties


Shooting at an Inhabited house or vehicle is a wobbler offense. This means it can be charged as a felony or as a Misdemeanor, based on your criminal history and the specific facts of your case. If you are convicted of this charge as a misdemeanor, you could be sentenced to County Jail for a minimum of six months and up to one year. If you are convicted of this charge as a Felony, you could be sentenced to State Prison for upwards of three, five, or seven years. You would be required to serve 50% of that sentence.

In addition to the above, you would be unable to purchase a firearm for 10 years under California Law, and a lifetime if it is a Felony. This would also be considered an Aggravated Felony in Immigration Court, and you would be immediately sent to Deportation Proceedings upon a conviction. You would also receive a Strike on your record since it is a serious Felony, and subject you to the Three Strikes Law, on any future felony conviction sentence would be doubled.

IV. Other relevant violations under this section


1. PC 246.3(a): Negligent Discharge of a Firearm

Legal Definition: Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner could result in injury or death to a person.

In other words, a person acts with gross negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

Penalties: Negligent Discharge of a Firearm is a wobbler offense. This means it can be charged as a felony or as a Misdemeanor, based on your criminal history and the specific facts of your case. If you are convicted of this charge as a misdemeanor, you could be sentenced to County Jail for up to one year. If you are convicted of this charge as a Felony, you could be sentenced to State Prison for upwards of 16 months, two or three years. You would be required to serve 50% of that sentence. You would also receive a Strike on your record since it is a serious Felony, and subject you to the Three Strikes Law, on any future felony conviction sentence would be doubled.

2. PC 247: Shooting at an unoccupied aircraft

Legal Definition: Any person who willfully and maliciously discharges a firearm at an unoccupied aircraft is guilty of a felony.

Penalties: Shooting at an unoccupied aircraft is a wobbler offense. This means it can be charged as a felony or as a Misdemeanor, based on your criminal history and the specific facts of your case. If you are convicted of this charge as a misdemeanor, you could be sentenced to County Jail for up to one year. If you are convicted of this charge as a Felony, you could be sentenced to State Prison for upwards of 16 months, two or three years. You would be required to serve 50% of that sentence.

A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.

V. Common Defenses


  1. Statute of Limitations
  2. Insufficient Evidence
  3. Defense of Other People
  4. Violation of your Rights
  5. Mistake of Fact

You cannot be found guilty under this section if at the time you discharged the firearm, you believed it to be unloaded. Certain circumstantial evidence can help bolster this defense. For example, if you are told the firearm is not loaded, it is not your firearm, and you have no reason to doubt the person telling you the lack of contents of the firearm, then it would be reasonable to assume it is not loaded.

Further, as explained above, there is a more important intent needed than it being a simple accidental shooting. Under PC 246, you either did the shooting on purpose, or under 246.3, you did it with gross negligence. Both standards are much higher than that which is a simple accident. It’s why if a man has his gun out on a table, and his son takes the gun and shoots it in the house, he clearly would not be guilty if he didn’t know he was doing that, and that it was an accident. Another defense under this section is the Defense of a Third-party. This is similar to self-defense, except you are “standing in the shoes” of another person, who would have a right to defend themselves. The only difference, is you are standing in the way to defend that third party under the same criteria listed above.

VI. Call Today


Shooting into an inhabited dwelling can be devastating to you or your loved ones’ life. Many times, if a fight occurred, you could suffer additional charges such as Criminal Threats, in addition to what you did to cause the main charge. This could happen in rival gangs, where one gang is retaliating by shooting at the home of a rival gang member while yelling threats at those rivals. You are facing many years in prison, in addition to the stiff fines and fees, as well as losing your 2nd Amendment Rights. You need an experienced attorney to fight for you or your loved one. Our PC 246 Ontario attorney has successfully defended numerous cases involving Discharging a Firearm crime under PC 246. The initial consultation is free and we are available to answer your questions 24/7. Call the Inland Empire Criminal Defense today at 909-939-7126! Located in Ontario, CA.

Disclaimer: The legal information presented at this site should not be construed to be formal legal advice, nor should it be considered the formation of a lawyer or attorney-client relationship. If you would like to find out more information about your particular legal matter, contact our office for a consultation.

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