Willfully discharge firearm at inhabited building, etc.
Aggravated Felony (AF)
Previously held to not be COV because it involves recklessness, but Supreme Court could change this; see Advice.
Therefore, try very hard to get 364 days or less on each count, or plead to another offense, to avoid an AF as a COV.
Crime Involving Moral Turpitude (CIMT)
Yes, assume CIMT.1See Matter of Muceros, (BIA 2000), Indexed Decision, supra.
Other Removal Grounds
Not a deportable firearms offense; see Advice.
If the law changes and this is held a COV, it is a potential DV offense (if it can have a specific human “victim”).
Advice and Comments
Firearms deportation ground. The Ninth Circuit held that no conviction of an offense that uses the definition of firearm at PC 16520(a) (formerly 12001(b)), triggers the firearms deportation ground or is a firearm aggravated felony, due to the antique firearms rule.2Conviction of an offense involving a “firearm” as defined under federal law can trigger deportability under the firearms ground. 8 USC § 1227(a)(2)(C). In general, if the federal definition of firearm is met, some state firearms offenses are aggravated felonies, including trafficking in firearms, and some state analogues to federal firearm offenses, such as being a felon in possession, also are. 8 USC § 1101(a)(43)(C). However, the federal definition of firearm specifically excludes an antique firearm, defined as a firearm made in 1898 or earlier plus certain replicas. 18 USC § 921(a)(3), (16). Under the categorical approach, conviction of a California firearms offense does not come within the firearms deportation ground, and is not a firearms aggravated felony, if antique firearms ever have been prosecuted under that statute—even if a non-antique firearm was used in the defendant’s own case. U.S. v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014). Significantly, the Aguilera-Rios rule applies to any conviction under any California statute that uses the definition of firearm at § 16520(a), formerly § 120001(b). Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014) (“We hold that Aguilera-Rios applies to any California statute based on the definition of ‘firearm’ formerly appearing at § 120001(b).” Note that in 2012, the definition of firearms at § 12001(b) was moved to § 16520(a), with no change in meaning. PC 246 uses that definition of firearm.
Recklessness. Courts have long held that a crime of violence requires more than reckless intent; thus the Ninth Cir held that 246 is not a COV. But the Supreme Court will decide the recklessness/COV issue in Borden v. United States, with argument in November 2020.3In Covarrubias-Teposte v. Holder, 632 F.3d 1049, 1054-55 (9th Cir. 2011), the court held that because Pen C § 246 is committed by recklessness it is not a crime of violence. The opinion by Judge Gould (with Judges O’Scannlain and Ikuta) also criticized the precedent that precludes all reckless offenses from being a COV. The Supreme Court will consider whether recklessness can amount to a COV in Borden v. United States (19-5410) (formerly Walker v. United States.) The Court will hear argument in November 2020. It will decide whether the definition of a COV in the ACCA, which is basically identical to the immigration definition of COV at 18 USC § 16(a), includes reckless conduct. Pending this decision, defenders must conservatively assume that recklessness can amount to a COV. See further discussion of the COV definition at the endnote to Pen C § 207, above. Therefore, defenders should conservatively assume 246 could be a COV and be an aggravated felony if 1 year or more is imposed, and conceivably a DV offense.
See endnote at Advice to Pen C 207 for discussion of COV. Consider PC 246.3. If a strike and/or prison is required, consider felony 594 with 136.1(b)(1) consecutive; 459/460(a) or (b) with prison sentence.
Misd is a “significant misdemeanor” for DACA but 1203.4 might help; see note at PC 25400.