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Unlawful Discharge of a Firearm 

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Under Penal Code § 246; Penal Code 246.3; Penal Code 247; and Penal Code 12022.53(d)

The negligent discharge of a firearm applies to many situations however it is primarily enforced and punished under California Penal Code 246, Penal Code 246.3, Penal Code 247, and 12022.53.

Penal Code § 246 punishes the willful and malicious discharge of a firearm at an inhabited dwelling or occupied car; during a drive by shooting, for example. It is not necessary for the purposes of this section that the dwelling actually be occupied at the time. Any structure that is used for human habitation will fall under this section. This section also provides the same punishment for the discharge of a firearm into any automotive vehicle, camper, house car, building, or aircraft that is actually occupied at the time. An offense under Penal Code § 246 will be charged as a felony and will carry a sentence of 3, 5, or 7 years in state prison or up to one year in county jail.

Penal Code § 246.3 prohibits the negligent discharge of a firearm in a manner that could result in death or injury to a person. Penal Code §246.3 is a “wobbler” offense, meaning it can be charged as a misdemeanor or a felony, depending on the criminal history of the defendant and the circumstances under which the gun was fired. Penal Code §246.3 does not require an actual target, as opposed to Penal Code § 246 which requires the shooting to have been at a dwelling or vehicle.

PC § 247 punishes the willful and malicious discharge of a firearm at an uninhabited dwelling, unoccupied motor vehicle, or unoccupied aircraft however the punishments differ. Firing at an unoccupied aircraft will be charged as a felony, while firing at an unoccupied motor vehicle or uninhabited dwelling will be charged as a misdemeanor carrying up to one year in county jail or up to 3 years in state prison.

PC § 12022.53 punishes the personal and intentional discharge of a firearm in the commission of a felony, which carries more severe punishments depending on to what extent the firearm was used during the felony.

Simply using the firearm in the commission of a felony, even without firing the weapon, will add an additional 10 years in state prison to whatever is given for the underlying felony. The firearm need not even be loaded during the commission of the felony for the sentencing enhancement under this section. If the firearm is actually discharged during the felony, this will add an additional 20 years in state prison to whatever is given for the underlying felony. If the discharge of the firearm actually inflicts in serious bodily injury or death, whether it be on an accomplice or victim of the underlying felony, this will add an additional 25 years to life in state prison.

As one can see from a brief overview of the statutes governing the Unlawful Discharge of a Firearm, there are many factors that will determine whether the discharge will result in a misdemeanor offense carrying a simple fine to a felony offense carrying a life term for sentencing enhancement alone. It is very important that if you are arrested and charge under Penal Code § 246, Penal Code § 246.3, Penal Code § 247, or Penal Code § 12022.53 that you contact an attorney immediately so that you may explore the most applicable defenses to your case. Especially if the firearm was allegedly discharged during the commission of a felony, it is particularly important that your attorney begins correspondence with the prosecution as soon as possible to reduce or drop the Penal Code § 12022.53 charge all together.

How the prosecution decides to charge the weapons offense, whether it will be a misdemeanor or a felony offense carrying life in prison will be entirely dependent on the facts unique to your case. It cannot be overstated that whatever the facts specific to your case may be, it is imperative that you consult with an experienced firearms lawyer in San Diego as soon as possible so that you may consult on the best avenue to take in ensuring your liberty and rights are protected. The days following your arrest may very well be the most pivotal time throughout your entire criminal proceeding. Attorneys at the Law Office of Marc S. Kohnen have been able help many people through these difficult and delicate matters involving the various types weapon offenses discussed above. If you or a loved one has been arrested and charged under any of the above sections, please feel free to contact the Law Office of Marc S. Kohnen for a complimentary and confidential consultation about your options in this pressing issue.

“When I met Marc, I was immediately relieved. His calm and professional demeanor was exactly what I needed. He handled my case without a hiccup.”

Heather M. | Rosemead, CA
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1350 Columbia Street, #700
San Diego, CA 92101
(619) 398-2500

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