Criminal Shooting in SAN RAFAEL, California: What You Need to Know

Being charged with shooting and brandishing a weapon can lead to serious consequences, especially if you are convicted. It is important to know what to expect if you are ever taken to court for this charge, as well as what defenses you and your legal defense counsel can mount to protect you from a conviction.

Burdens of Proof

“Shooting and Brandishing” is a catchall term for a variety of criminal charges related to unlawfully discharging a firearm. Each charge carries a unique definition, burden of proof, and possible penalties. Let's break them down one by one.

Shooting

California Penal Code 246 defines shooting at someone quite clearly. Defendants are charged with firing a weapon at one or more types of structures or vehicles. But there are more specifics to the charge that can determine whether the prosecution or defense will win out. To be convicted of shooting and brandishing, the defendant must have:

• Willfully and maliciously shot a firearm AND
• Shot that same firearm at either an inhabited house, car, camper, occupied building or motor vehicle, or occupied aircraft AND
• Not act in deliberate self-defense or in the defense of another person

There are a few definitions to clarify. To the court:

• Willfully means that a person did something with full knowledge and intent
• Malicious means that an action was done willfully and wrongfully, usually with the intent to injure or disturb another person
• Inhabited means someone uses the car, house, or camper as a dwelling. It does not matter if someone was inside at the time – inhabited just means it is a permanent residence. However, inhabited can be disproven if it is clear that residents left and did not intend to return, regardless of the status of personal property

Shooting at an Uninhabited House or Motor Vehicle

This is a separate crime according to the court and the laws of Penal Code 247(b). To be convicted of this crime, a defendant must be proven to have:

• Shot a firearm willingly at an uninhabited house or building or an unoccupied motor vehicle AND
• Do the shooting without the permission of the owner AND
• Not acted in self-defense

The same basic burdens of proof apply for shooting at an unoccupied aircraft (Penal Code 247(A)).

Shooting from a Motor Vehicle

According to California Penal Code 26100 (c) and (d), to be convicted of this crime, it must be proven that the defendant:

• Maliciously and willfully shot a firearm from a motor vehicle AND
• Shot the firearm out another person who was not in a vehicle AND
• Did not act in self-defense or defense of another person

Permitting Someone to Shoot From a Vehicle

This charge is unique in that it does not matter whether you personally fired the weapon. Instead, it applies to cases when you allowed someone to shoot from a vehicle as a kind of accomplice. To be proven guilty of this crime as explained in Penal Code 26100 (b), the defendant must be proven to:

• Be the driver of a vehicle AND
• Allow someone to shoot a firearm from the vehicle AND
• Know that someone was going to shoot from the vehicle AND
• That other person has to actually shoot, not just threatened to do so

In this case, “permission” can be proven through circumstance. For instance, if the defendant knew there was a gun in the glove compartment and allowed the passenger to take that weapon, they might be convicted of permitting someone to shoot from their moving vehicle.

Shooting a Firearm or BB Device in a Grossly Negligent Manner

This charge, as described by Penal Code 246.3, is the most serious of the bunch. To be proven guilty of this crime, the defendant must be shown to have:

• Intentionally fired a firearm or BB device AND
• Do so with gross negligence AND
• The shooting has to result in the injury or death of another person AND
• The shooting cannot have occurred in self-defense or defense of another

The definition of gross negligence, in this case, requires an extreme lack of care, extra inattention, or a very bad mistake in judgment. It carries connotations and requirements for recklessness and a lack of reason.

Brandishing

For all of these crimes, brandishing means drawing, exhibiting, or otherwise using a firearm, including shooting. However, brandishing a weapon without discharging the firearm may be charged under Penal Code 417 PC.

Penalties for Shooting and Brandishing

All of these crimes may be classified as “wobblers” and be charged as either felonies or misdemeanors. Possible sentences can be quite harsh and may include:

• Up to a year in county jail if charged as a misdemeanor
• Up to 16 months/2 years/3 years in state prison if charged as a felony
• Several fees ranging into the thousands of dollars