PC 246

Offense

Willfully discharge firearm at inhabited building, etc.

Aggravated Felony (AF)

Recklessness is not a COV, so PC 246 is not an AF even if a year or more is imposed. Still, best practice always is to try to get 364 days or less. See Advice.

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.
Because it is not a COV, it cannot be held a crime of DV

Advice and Comments

PC 246

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 and COV. Courts of appeals have long held that a crime of violence requires more than reckless intent; thus the Ninth Cir held that 246 is not a COV.³In Covarrubias Teposte v. Holder, 632 F.3d 1049, 1053-56 (9th Cir. 2011), the Ninth Circuit held that because PC 246 can be committed with “purely reckless conduct,” it is not a crime of violence under 18 USC § 16(b)). The court noted that the offense can be committed by shooting very close to a building but not at the building, and the building did not need to be occupied.

Note that 18 USC § 16(b) subsequently was held to be unconstitutionally vague. The current definition is the narrower 18 USC 16(a). However, the authors of the Covarrubias Teposte at the time noted in a footnote that they decided it was not a COV under 18 USC 16(b) only “under compulsion of our prior precedent.” Id. at p. 1056, n. 2. The Supreme Court affirmed that recklessness is not a COV in Borden v. United States.⁴The Supreme Court affirmed the longstanding rule that recklessness, defined as a conscious disregard of a substantial and unjustifiable known risk, is not a sufficient mens rea to be a crime of violence. Borden v. United States 593 U.S. 420 (2021). The criminal case interpreted the definition of a COV in the ACCA, which is identical to the immigration definition of COV at 18 USC § 16(a). Because PC 246 can be committed by recklessness, it is not a COV. See Covarrubias Teposte v. Holder, 632 F.3d 1049, 1054-55 (9th Cir. 2011), discussed in above endnote.

Note that the Ninth Circuit in United States v. Draper, 84 F.4th 797 (9th Cir. 2023) found that a conviction for voluntary manslaughter, committed with a mens rea of “extreme recklessness or depraved heart,” is a COV. Because PC 246 is viewed as a dangerous offense, it is conceivable that ICE would assert that Draper also applies to PC 246. That argument would be incorrect. The minimum conduct for PC 246 only requires a mens rea of recklessness, defined the same as in Borden, and does not require “extreme recklessness or depraved heart.”  Also PC 246 does not include oppositional force as required by the Supreme Court‘s decision on recklessness in Borden. Therefore, while 364 days always is preferable, this is not a COV or an aggravated felony if 1 year or more is imposed, or 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 as a firearms offense, but 1203.4 might help; see note at PC 25400.