Law Offices of Michael E. Cindrich, APC 225 Broadway, Suite 2100 San Diego, CA 92101

Unlawful Discharge of a Firearm

Unlawful or negligent discharge of a firearm is a serious offense under California Penal Code §246.3. The law makes it a crime to willfully discharge a firearm in a grossly negligent manner that could result in injury or death. Even if no one is harmed, prosecutors and law enforcement treat these cases as dangerous acts that threaten public safety.

This charge often arises from situations involving celebrations, accidental gunfire, or careless use of firearms. However, the prosecution must still prove intent and recklessness beyond a reasonable doubt, and many arrests stem from misunderstandings, misfires, or false reports.

A conviction can lead to jail or prison time, loss of firearm rights, and a permanent criminal record. If you’ve been accused of unlawfully discharging a firearm, experienced legal representation is critical to protecting your rights and your future.

San Diego Unlawful Discharge of a Firearm Defense Attorney

If you’ve been accused of unlawfully discharging a firearm, you may already be facing aggressive questioning or search warrants for your home or property. Law enforcement often assumes intent simply because a gun was fired, even when the incident was accidental or occurred on private property.

An attorney can immediately intervene to protect your rights, handle communications with police, and prevent statements from being misused against you. Early legal action can also preserve key evidence such as video footage, witness statements, and firearm reports.

Attorney Michael Cindrich has extensive experience defending firearm-related cases across California, including negligent discharge, assault with a firearm, and possession charges. He understands California’s complex gun laws and how prosecutors build, and often overreach, in these cases.

The Law Offices of Michael E. Cindrich represent clients throughout San Diego County, including Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, Vista, San Marcos, Encinitas, National City, La Mesa, and San Diego proper.
For a free and confidential consultation, call (619) 262-2500.

Overview of Unlawful Discharge of a Firearm Charges in San Diego

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Definition of Unlawful Discharge of a Firearm

Under California Penal Code §246.3(a), a person commits the offense of negligent or unlawful discharge of a firearm when they:

  1. Willfully discharge a firearm,
  2. In a grossly negligent manner, and
  3. The discharge could have resulted in injury or death to another person.

The law applies to both firearms (e.g., handguns, rifles, shotguns) and BB or pellet guns, which can also cause injury or damage.

This offense is different from shooting at an inhabited dwelling or vehicle (Penal Code §246), which requires proof that the defendant intentionally fired at a building or car. Penal Code §246.3 focuses instead on the reckless or careless handling of a firearm in any setting.

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Common Examples

  • Firing a gun into the air during a celebration or holiday event.
  • Accidentally discharging a firearm while cleaning or handling it.
  • Firing a weapon into the ground or a wall to “test” it.
  • Shooting near a residence, vehicle, or public street.
  • Using a gun while intoxicated or impaired.
  • “Warning shots” or negligent displays of force during an argument.

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Penalties for Unlawful Discharge of a Firearm

Negligent discharge of a firearm under Penal Code §246.3 is a wobbler offense, meaning it can be charged as either a misdemeanor or felony depending on the circumstances and the defendant’s criminal record.

Misdemeanor Penalties

  • Up to 1 year in county jail
  • Fines up to $1,000
  • Summary probation, firearm safety courses, or community service
  • Loss of firearm rights during probation

Felony Penalties

  • 16 months, 2 years, or 3 years in state prison
  • Fines up to $10,000
  • Formal probation or parole
  • Lifetime firearm ban under state and federal law

Aggravating Factors

Certain facts can increase penalties, including:

  • Prior firearm-related convictions
  • Discharge near a school, vehicle, or occupied building
  • Use of a high-powered or automatic weapon
  • Endangerment of children or multiple people

A conviction under §246.3 may also count as a “strike” under California’s Three Strikes Law if the discharge caused serious bodily injury or was committed with intent to harm.

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Key Elements a Jury Considers in Unlawful Discharge of a Firearm Cases

Jurors evaluating a case under Penal Code §246.3 must consider whether the prosecution has proven each element beyond a reasonable doubt:

  • Willful Discharge – The defendant must have intentionally fired the weapon. Accidental discharges do not meet this requirement unless they stem from reckless handling.
  • Gross Negligence – The act must go beyond ordinary carelessness; it must be conduct that shows disregard for human life or safety. Jurors must decide whether the behavior created a substantial risk of death or serious injury.
  • Potential for Injury or Death – The prosecution must prove that the manner in which the gun was fired could have resulted in injury or death to someone nearby.
  • Credibility and Evidence of Discharge – Jurors weigh witness testimony, physical evidence (such as shell casings or bullet holes), and forensic reports to confirm whether a firearm was actually discharged.
  • Defendant’s Intent and Circumstances – The jury considers the defendant’s mental state, location, and reason for possessing or firing the weapon, such as self-defense, accident, or coercion.

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Defenses to Unlawful Discharge of a Firearm Charges

Common defenses include:

  • Accidental Discharge – The firearm went off unintentionally and not through gross negligence.
  • Self-Defense or Defense of Others – The gun was discharged in lawful self-defense or defense of another person under Penal Code §198.5.
  • No Gross Negligence – The act did not show reckless disregard for human life, but rather momentary carelessness or mechanical malfunction.
  • False Accusation or Lack of Evidence – The discharge was not proven through physical or ballistic evidence.
  • No Potential for Injury – The firearm was discharged in a safe, controlled environment such as a firing range or isolated property.
  • Illegal Search or Seizure – Evidence was obtained unlawfully, violating the defendant’s Fourth Amendment rights.

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Role of a San Diego Unlawful Discharge of a Firearm Attorney

  • Immediate Case Evaluation and Evidence Preservation – The attorney reviews all police reports, witness statements, and forensic evidence (including shell casings and trajectory analysis) to determine whether the discharge was intentional or accidental.
  • Challenging the “Gross Negligence” Element – The lawyer focuses on whether the prosecution can prove that the conduct rose to the level of “gross negligence” rather than simple carelessness.
  • Analyzing Ballistics and Forensic Reports – Independent experts may be used to challenge law enforcement’s conclusions regarding where and how the firearm was discharged.
  • Protecting Against Firearm Enhancements – The attorney ensures that prosecutors do not improperly add enhancements such as “use of a firearm in a felony” (§12022.5) or “gang enhancement” (§186.22).
  • Negotiating for Charge Reduction or Dismissal – In many cases, counsel can secure a reduction to a lesser offense such as “discharging a BB gun” or “disturbing the peace,” especially if no one was injured.
  • Expungement and Record Relief – After the case concludes, the attorney may seek expungement under Penal Code §1203.4 to clear the conviction and restore eligibility for certain rights and employment.

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Frequently Asked Questions

Q: Is it illegal to fire a gun on my own property in California?
 A: It depends on local ordinances. In most populated areas, discharging a firearm within city limits or near dwellings is prohibited unless done in lawful self-defense or at an authorized range.

Q: What if the gun went off accidentally?
 A: Accidental discharge can be a defense if the firearm fired due to mechanical malfunction or unintentional movement and not from gross negligence.

Q: Can I lose my gun rights for this offense?
 A: Yes. A felony conviction under Penal Code §246.3 results in a lifetime firearm ban under state and federal law.

Q: Is this offense considered a strike?
 A: It can be if the discharge causes great bodily injury or is accompanied by intent to harm.

Q: Can I be charged even if no one was hurt?
 A: Yes. The statute only requires that the discharge could have caused injury or death, not that it actually did.

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Additional Resources

California Penal Code §246.3 – Negligent Discharge of a Firearm: Defines the offense, outlines penalties, and explains when firearm discharge becomes criminally negligent under California law.

California DOJ – Firearms Laws Summary: Provides guidance on safe firearm ownership, prohibited conduct, and penalties for misuse.

California Courts – Criminal Law Self-Help Center: Explains how criminal cases are processed in California courts, including arraignment and trial procedures.

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Hire a Defense Attorney for Unlawful Discharge of a Firearm Charges in San Diego County, CA

A charge for unlawfully discharging a firearm is a serious matter that can jeopardize your freedom and your Second Amendment rights. You need a defense attorney who understands California’s firearm laws, forensic evidence, and the complexities of intent and negligence.

The Law Offices of Michael E. Cindrich represent clients across San Diego County, including Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, Vista, San Marcos, Encinitas, National City, La Mesa, and San Diego proper.

Don’t face firearm charges alone. Contact Attorney Michael Cindrich today for a free and confidential consultation at (619) 262-2500.