Willfully discharge firearm or BB device with gross negligence
Aggravated Felony (AF)
Not an AF as COV, but best practice always is to get 364 days or less on any single count if possible.
Crime Involving Moral Turpitude (CIMT)
Should not be CIMT due to gross negligence but might be so charged
Other Removal Grounds
Not deportable firearms offense; see PC 246. For further safety, plead to BB device.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).
Advice and Comments
The Ninth Circuit held that 246.3, committed by gross negligence, is not a COV. This should not be affected by the pending Supreme Court case, Borden (see Advice to 246), which will decide if recklessness is a COV.1See U.S. v. Coronado, 603 F.3d 706 (9th Cir. 2010) finding that Pen C § 246.3 is not a COV under 18 USC § 16(a) (or even under § 16(b), which has since been struck down; see Advice to Pen C § 207). In contrast to Pen C § 246, section 246.3 should not be controlled by the pending Supreme Court case, Borden (see endnote above), which has to do with whether recklessness is a COV. “Gross negligence” in § 246.3 does not require recklessness, a conscious disregard of a known risk. See, e.g., People v. Overman (2005) 126 Cal.App.4th. Thus, even if the Supreme Court decides that the definition of crime of violence at 18 USC § 16(a) includes recklessness, it appears that this won’t affect § 246.3. Still, as always, it is best to get a sentence of 364 or less.
Misd is a “significant misdemeanor” for DACA but 1203.4 might help (or advocates can explore arguments relating to BB guns as opposed to other firearms). See note at PC 25400.