Shooting at a Dwelling

Shooting at Inhabited Dwelling or Occupied Vehicle – Penal Code 246 PC

California law makes it a felony to willfully discharge a firearm at any inhabited dwelling or occupied vehicle under Penal Code 246 PC.

Penal Code 246 PC makes it a felony crime to shoot a firearm at an inhabited dwelling or vehicle.

PC 246 says: “Anyone who maliciously and willfully discharges a firearm at an inhabited dwelling house, occupied building, motor vehicle, aircraft, house car defined under Vehicle Code 362 VC, inhabited camper defined under Vehicle Code 243 VC, is guilty of a felony and punishable by three, five, or seven years in state prison, or not less than six months in county jail.”

Someone acts “willfully” when they do the act on purpose. A person acts “maliciously” when they intentionally commit a wrongful act or act with the unlawful intent to disturb, defraud, annoy, or injure somebody. A dwelling is “inhabited” if it is currently used for dwelling purposes, whether it is presently occupied or not.

If you are convicted of this crime, you could face up to 7 years in prison—and if the incident qualifies for specific enhancements, the sentence could be much longer.

Penal Code 246 PC covers a broad range of scenarios where it is illegal to fire a gun. The law specifically makes it a crime to "maliciously and willfully discharge a firearm" at any of the following:

• Inhabited dwelling house, meaning a place where someone sleeps and stores possessions;
• Inhabited camper or RV;
• Occupied building (residential or commercial);
• Occupied vehicle;
• Occupied aircraft;

In this article by our California criminal defense lawyers, we will examine this statute further below.

What Terms You Need to Understand About This Law

• "Inhabited" refers to someone living there, whether or not they are present when the shot is fired. "Occupied" means someone is actually inside.
• For inhabited dwellings, the person doesn't have to be inside to be a crime to fire at; it just has to be where someone lives. However, for "occupied" buildings and vehicles, it's only a crime under PC 246 if someone is physically inside the building, car, or aircraft.
• Firing "at" a dwelling or vehicle encompasses more than just aiming at or targeting it; it includes firing in close proximity to it or toward it in a way that makes it likely that you will hit it.
• "Willfully and maliciously" means you intended to do the act and had malice aforethought.

What Are Some Examples?

EXAMPLE 1: Joe is part of a gang. In retaliation against a rival gang, he goes to a rival gang member's house and empties his weapon into it from the outside. Joe is guilty of shooting at an inhabited dwelling. If he is found guilty, not only could he face prison for the act itself, but he may face enhanced sentencing for doing so as part of gang activity. He could also face enhanced sentencing if anyone were seriously injured or killed by the bullets.

EXAMPLE 2: While on the street, Tim pulls out his gun to show it to his girlfriend, Tina. As she looks at it, the gun goes off and inadvertently strikes a nearby vehicle in motion, injuring the driver. While she may be guilty of other gun crimes, Tina is not guilty of firing at an occupied vehicle because her actions were not willful nor malicious.

What Are the Penalties for a Penal Code 246 Conviction?

Violations of PC 246 shooting at an inhabited dwelling or occupied vehicle are always charged as felony offenses. If you are accused of this crime and convicted, you face up to 7 years in a California state prison and a $10,000 fine.

However, depending on the circumstances, these crimes also often qualify for sentencing enhancements, making the sentence much longer. The most common sentencing enhancements include:

• Gang sentencing enhancement (Penal Code 186.22 PC). If you fired at an inhabited building or occupied building as part of gang-related activity, you could face additional prison time of 2-4 years.
• 10-20-Life enhancement (Penal Code 12022.53 PC). If someone suffers serious bodily injury or death due to your actions, you could face 25 years to life in prison.

What Are the Related California Offenses for PC 246?

Numerous crimes are often charged with, or instead of, Penal Code 246 PC shooting at an inhabited dwelling or occupied vehicle, such as:

• Penal Code 247b PC - shooting at an unoccupied vehicle, 
• Penal Code 26100 PC – drive-by shooting,
• Penal Code 25850 PC – carrying a loaded firearm,
• Penal Code 246.3 PC – negligent discharge of a firearm,
• Penal Code 30600 PC – possession of an assault weapon,
• Penal Code 245(a)(2) PC – assault with a firearm,
• Penal Code 664/187 PC – attempted murder,
• Penal Code 29800 PC – felon in possession of a firearm.

What Are the Legal Defenses for This Crime?

There are several defense strategies that an attorney can implement to combat shooting at an inhabited dwelling or occupied vehicle charges under PC 246. These are discussed below.

Perhaps you didn't act willfully or maliciously. If you can show that your actions were accidental or unintentional, you are not guilty of this crime.

Perhaps you were mistaken about whether the building or vehicle was occupied. If you can show that you believed you were firing at an unoccupied vehicle or business, you are not guilty of this crime but could be charged with violating other laws.

Contact us for an initial case evaluation.

Note that this defense does not apply to inhabited dwellings; if someone lives there, you are guilty of the crime even if they weren't home at the time.

Perhaps you were defending yourself or someone else. If you can show that you were reasonably in fear for your life or the life of someone else and that firing at the building or vehicle was the only way to protect yourself or them, then you have a viable self-defense claim.

Perhaps you are the victim of false allegations or mistaken identity. It's not uncommon for someone to be falsely accused of firing a gun at a house or vehicle.

Often, the accuser has other motives, such as jealousy or anger. Also, if the shooting occurred at night, any witnesses may have mistakenly identified you as the perpetrator.

If you have been charged under this law, you must retain a criminal defense lawyer with experience dealing with violent felony cases. We might be able to negotiate lesser charges or even persuade the prosecution not to file formal charges before the first court date (DA reject).

Contact Eisner Gorin LLP for an initial case review by phone or use the contact form. We provide legal representation across Southern California.