Celebratory Gunfire California Law
Penal Code Section 246.3 provides: "Except as otherwise authorized by law, any person who 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 the county jail not exceeding one year, or by imprisonment in the state prison."
That this offense is a "wobbler" which could be sentenced as a misdemeanor (People v. Leslie (1996) 47 Cal. App. 4th 198, 201 [54 Cal. Rptr. 2d 545]) has no bearing on the felony-murder issue (People v. Satchell, supra, 6 Cal. 3d at p. 35, fn. 13).
It has been stated that second degree felony-murder analysis involves the application of a "bipartite standard," where a reviewing court "look[s] first to the primary element of the offense at issue, then to the 'factors elevating the offense to a felony,' to determine whether the felony, taken in the abstract, is inherently dangerous to human life." ( People v. Burroughs, supra, 35 Cal. 3d at p. 830, citing People v. Henderson, supra, 19 Cal. 3d at p. 94; cf. People v. Patterson, supra, 49 Cal. 3d at p. 624 [statute may have no "primary element"].)
This "bipartite" approach is subsumed in the rule that where, as here, the statute "proscribe[s] an essentially single form of conduct" (People v. Patterson, supra, at p. 623), the statute as a whole must be examined to determine whether it describes an inherently dangerous felony (ibid.).
Thus, we will simply take into account all of the elements of section 246.3 without breaking the discussion down into a "bipartite" analysis.
Section 246.3 was enacted to deter "the dangerous practice of discharging firearms into the air during festive occasions." ( People v. Leslie, supra, 47 Cal. App. 4th at p. 201; see People v. Alonzo (1993) 13 Cal. App. 4th 535, 539 [16 Cal. Rptr. 2d 656].)
The elements of the offense are:
(1) the defendant unlawfully discharged a firearm;
(2) the defendant did so intentionally;
(3) the defendant did so in a grossly negligent manner which could result in the injury or death of a person." ( People v. Alonzo, supra, at p. 538; see also In re Jerry R. (1994) 29 Cal. App. 4th 1432, 1439, 1440 [35 Cal. Rptr. 2d 155] [weapon must be fired intentionally; willful discharge and gross negligence are discrete elements of the offense].)
Willful discharge of a firearm with gross negligence in violation of section 246.3 poses a sufficient danger to human life to support a conviction for second degree felony murder.
"It is universally accepted that a loaded gun is so dangerous an instrument that a high degree of caution and circumspection is required of the person handling it." (People v. Tophia (1959) 167 Cal. App. 2d 39, 45 [334 P.2d 133].)
"From the time of the common law, firearms were recognized as a dangerous instrumentality because of their great potential harm and in the interest of the preservation of human life and safety a high degree of care was demanded of those who use them." (People v. Freudenberg (1953) 121 Cal. App. 2d 564, 580 [263 P.2d 875].)
"The tragic death of innocent and often random victims, both young and old, as the result of the discharge of firearms has become an alarmingly common occurrence in our society--a phenomenon of enormous concern to the public." ( People v. Hansen, supra, 9 Cal. 4th at p. 311.)
The offense described in section 246.3 was outlawed precisely because of the lethal danger it posed. (See People v. Alonzo, supra, 13 Cal. App. 4th at p. 540 [ 246.3 addressed " 'reckless and senseless' " acts which had " 'resulted in the death of at least 2 persons, . . . in the Los Angeles area alone' "].)
Potential elevation of the offense to felony murder "may serve to deter this type of reprehensible conduct." (People v. Hansen, supra, at p. 311.)