Drive-By Shooting

Drive-By Shooting Law in California - Penal Code 26100 PC

While numerous laws in California outlaw the use of guns, California Penal Code 26100 PC makes it a specific crime to commit a "drive-by shooting" or a "shooting from a motor vehicle."

It is also a crime to enable this behavior by allowing someone with a gun to enter your vehicle. A person convicted of a drive-by shooting could face up to 7 years in prison.

Penal Code 26100 PC prohibits a wide range of criminal conduct related to a drive-by shooting.

Shooting from a motor vehicle is a severe crime that can lead to a substantial prison sentence if you are convicted. Its official name is “discharging a firearm from a motor vehicle,” and legally defined under Penal Code 26100 PC.

PC 26100 says: “It is a misdemeanor crime for a driver or owner of any vehicle to knowingly permit someone to carry a firearm into or bring into the vehicle. (b) Anyone knowingly permitting someone to discharge any firearm from the vehicle faces imprisonment in the county jail of up to three years. (c) Anyone who willfully and maliciously discharges a firearm from a motor vehicle at someone other than an occupant is guilty of a felony punishable by up to seven years in state prison.”

As noted in this legal definition, this statute prohibits a broad range of criminal conduct connected with a drive-by shooting, such as knowingly letting a passenger have a gun in your vehicle and shooting at another person from your car. The vehicle does not have to be in motion to commit a drive-by shooting.

If you knowingly allow somebody to bring a gun into your car, you could face misdemeanor charges. If you allow somebody to fire a gun from your vehicle, the prosecution has the discretion to file either a misdemeanor or felony charge, which is called a “wobbler.”  Our California criminal defense lawyers will review this law further below.

Penal Code 26100 PC Explained

PC 26100 effectively addresses numerous offenses involving bringing a loaded firearm into a vehicle or using the firearm. The law makes it a crime to do any of the following:

• Knowingly allowing someone to bring a firearm into your vehicle;
• Knowingly allowing someone to fire a weapon from inside your vehicle;
• Willfully and maliciously firing a weapon from inside the vehicle; or
• Willfully and maliciously firing a weapon at a person outside the vehicle.

As noted, the vehicle doesn't have to be moving to qualify as a "drive-by" shooting. As long as the gun is fired from inside the car, it is a crime under PC 26100.

What Are Some Examples?

EXAMPLE 1: As part of his initiation into a gang, Danny volunteers to drive his car while another gang member in the passenger seat attempts to fire a gun at a rival gang member. Although Danny wasn't the one who fired the weapon, he is guilty under PC 26100 because he knowingly allowed someone with a loaded gun to enter his vehicle.

EXAMPLE 2: Sarah is driving along when she sees her ex-boyfriend walking down the street with his new girlfriend. She becomes so enraged that she pulls over, pulls out a gun, and fires several shots at him inside her car. She is guilty of shooting from a motor vehicle in violation of PC 26100.

EXAMPLE 3: John and Marcus get into a heated argument in the backseat of a car. John pulls out a gun and shoots Marcus. While John is guilty of other crimes, he won't be charged with a drive-by shooting because the shooting was contained inside the vehicle.

What Are the Related Crimes?

Drive-by shootings often occur in tandem with other crimes, which may be charged independently or in addition to violations of PC 26100. These include, but are not limited to:

• Penal Code 247b PC - shooting at an unoccupied vehicle,
• Penal Code 245 PC - assault with a deadly weapon,
• Penal Code 246 PC - discharge of a firearm at an inhabited dwelling,
• Penal Code 246.3 PC – negligent discharge of a firearm,
• Penal Code 186.22 PC - participation in a street gang,
• Penal Code 25850 PC - carrying a loaded 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,
• Penal Code 12022.53 PC – use a gun and you're done law.

What Are the Penalties for Drive-By Shooting in California?

Each of the offenses listed above under PC 26100 may be classified as crimes of different severity, punishable by different penalties:

• Knowingly allowing someone with a gun to enter your vehicle is a misdemeanor offense. If convicted, you could face up to 6 months in county jail and fines up to $1000.
• Knowingly allowing someone to fire a weapon from inside your vehicle is a "wobbler" (charged as either a misdemeanor or felony). If convicted of a misdemeanor, you could face up to a year in jail and fines up to $1000. If a felony, you could face up to 3 years in prison and fines up to $10,000.
• Firing a gun inside the car is also a "wobbler." If convicted of a misdemeanor, the penalty is up to a year in jail and up to $1000 in fines; if a felony, it's up to 3 years in prison and up to $10,000 in fines.
• Firing a gun at a person inside the vehicle is a felony. You face fines of up to $10,000 and up to 7 years in prison if convicted.

What Are the Common Legal Defenses for This Crime?

Several different defenses may apply to drive-by shooting charges. Some common ones are discussed below.

Perhaps you didn't know there was a gun in the car. For example, the passenger who committed the drive-by shooting brought the gun into the car without your knowledge or consent.

Contact our criminal defense lawyers for help.

Perhaps we can argue the gun went off accidentally. To procure a conviction for a drive-by shooting, prosecutors must prove the shooter fired the weapon willfully and maliciously (with bad intent). If the discharge was accidental, it doesn't qualify as a drive-by shooting.

Perhaps we can make a reasonable argument that you acted in self-defense or defense of others. Suppose your attorney can show you fired a gun from inside the vehicle because you believed you or someone else was in imminent danger and that using the weapon was an appropriate level of force. In that case, you may be able to get the charges reduced or dismissed.

Perhaps there are false allegations or a case of mistaken identity. If the shooting occurred at night, any witnesses might have mistakenly identified you as the perpetrator.

If you were charged under this law, you would need a criminal defense lawyer with experience dealing with violent felony cases. Perhaps we could negotiate lesser charges or persuade the prosecutor not to file formal charges before the first court date (DA rejected).

Eisner Gorin LLP is located in Los Angeles and we provide legal representation across Southern California. Contact us for a case evaluation by phone or use the contact form.