California Drive-by Shooting Laws (Penal Code Section 26100)

Under California Penal Code Section 26100, a drive-by shooting is willfully or maliciously discharging a firearm from a motor vehicle.¹ This is most commonly referred to as a “drive-by shooting.” Willfully means you committed the act on purpose. Acting maliciously means intentionally trying to disturb, annoy, or injure someone.²

Shooting someone from your car is not the only way you can be charged with a crime under Penal Code Section 26100. California law also makes it illegal to:

• Knowingly let someone else bring a firearm into your car;
• Knowingly let someone discharge a firearm from your car;
• Discharge a firearm from within your car; and
• Shoot at someone outside of your car, even if you do not hit him or her.³

Even if you are not in your vehicle, but you allowed someone to discharge a firearm from it, you can still be charged with a violation of Penal Code Section 26100.⁴ Moreover, the vehicle does not have to be moving at the time of the alleged offense. Committing any of the above acts while the car is idle is still illegal.

For example, a vengeful husband may want to frighten a man who he believes is sleeping with his wife. He decides to park his car in front of his house and wait for him to come out. When the man steps out of his home, the husband fires a few shots into the air from his car. This is a violation of California’s drive-by shooting laws.

If you are facing allegations of violating California Penal Code Section 26100, it is important that you fight these charges vigorously. The attorneys at Wallin & Klarich have been defending our clients accused of this crime for over 40 years.

What the Prosecution Will Try to Prove

In order to be convicted of a crime under Penal Code Section 26100, the prosecution will try and prove several elements against you. Whether you discharged the firearm, or another person discharged it from your vehicle, the prosecution will need to show that:

• You or the passenger discharged a firearm;
• You or the passenger discharged the firearm willfully and maliciously;
• You were either driving the vehicle or owned the vehicle at the time the act was committed; and
• You or the passenger discharged the firearm from inside the vehicle.⁵

Even if the gun was never fired, you can still be convicted if the prosecution can show that you knowingly allowed a passenger to bring a firearm into your car.⁶

Defenses to a California Drive-by Charge

Having a skilled attorney is absolutely necessary to prove to the court that you are innocent. Some defenses that our team of attorneys at Wallin & Klarich can successfully prove to the court include:

• You did not know the passenger had a gun: In order to be convicted the prosecution must prove that you knew the passenger had brought a firearm into your car. Maybe he or she concealed the weapon and you had no way of knowing. Depending on your case, this may be your best defense.
• You did not allow the passenger to bring the gun into your car or shoot it: In some cases, a passenger may enter your car and point the gun to your head. He or she may then commit a drive-by while in your car. If you were forced to allow the person to discharge the firearm from your car, you cannot be convicted of this crime.
• Self-Defense: Under California’s self-defense laws, you are allowed to use force to defend yourself if certain elements are present. You must reasonably believe that you or someone in your vehicle is about to suffer physical harm. Finally, you cannot use more force than is necessary to defend yourself from the danger. If all of these elements are present, you may be able to prove that you or your passenger were acting out of a reasonable concern for your safety.⁷

Penalties for a Violation of California Penal Code Section 26100

If you are convicted of violating Penal Code Section 26100, the consequences can be severe. Just how severe depends on the specifics of your case. Depending on whether a passenger in your car possessed the firearm, or you did, the penalties vary…

• When the passenger discharged the weapon

If you were the driver or owner of the vehicle, and you allowed a passenger to bring a firearm into your car, you are guilty of a misdemeanor. The punishment for this is up to six months in county jail and up to $1,000 in fines.⁸

If you allowed the passenger to fire the weapon from your car while you were driving, the consequences can be more serious. Depending on your case, this can be charged as either a misdemeanor or a felony. If you are convicted of a misdemeanor for allowing a passenger to fire a weapon from your vehicle, you face up to one year in county jail and up to $1,000 in fines.

If the passenger seriously injured or killed someone while discharging a firearm from your car, prosecutors are likely to charge you with a felony. The consequences of this are 16 months, two years, or three years in state prison. You can also face up to $10,000 in fines.⁹

• When you discharged the weapon

If you are convicted of discharging the gun from inside of your car, you can also be charged with either a misdemeanor or a felony. A misdemeanor charge includes up to one year in county jail and up to $1,000 in fines. For a felony, you may face up to three years in state prison and up to $10,000 in fines.

If you shot at another person from your vehicle, it is automatically charged as a felony. For a conviction of this offense you face three, five, or seven years in state prison. You can also be forced to pay $10,000 in fines.¹⁰

California Three Strikes Law

You should also be aware of how a felony drive-by conviction counts against you under California’s Three Strikes sentencing. A felony conviction for drive-by shooting is considered a “serious felony.” This means that it will result in a strike on your criminal record.¹¹

With a strike on your record, any subsequent felony conviction will result in far more harsh penalties. In fact, a new felony conviction will result in a prison sentence twice as long as otherwise stated. For example, let’s say you have a strike on your record for a previous serious felony. If you are now convicted of felony for a drive-by shooting at another person, you may face up to 14 years in state prison, instead of the usual seven.¹²

If you already have two strikes or more on your record, a felony drive-by shooting conviction will result in a sentence of 25 years to life.¹³

Drive-By FAQs

To help you better understand your allegations and the consequences you may face, here are some frequently asked questions from prior clients:

• Will I be convicted if I did not know that my passenger had a gun?

The short answer is no. In order to be convicted of a violation of California Penal Code Section 26100, the prosecution must be able to prove that you knew your passenger had a gun. It is your attorney’s job to prove to the court that you had no idea because the passenger concealed the weapon, did not tell you, etc.

• I was acting in self-defense, but it is my word against the other party’s. How can I prove this to the court?

If you were acting in self-defense by discharging a weapon from your vehicle, California law allows this under certain circumstances. You must have been in imminent danger of being killed or suffering bodily harm. You must have also reasonably believed you needed to use deadly force to defend yourself. Your attorney’s job is to prove that you used the force necessary to defend yourself with the evidence of your case.

• Can I be convicted of any other crimes related to the drive-by?

If you used an assault weapon or any .50 BMG rifle during the alleged crime, you may be in violation of California Penal Code Section 30600. A felony conviction for possessing these dangerous weapons can result in up to three years in state prison and up to $10,000 in fines.¹⁴

• Do I face harsher penalties if I hurt someone?

Your sentence can be enhanced if you inflicted bodily injury upon someone else. Under California Penal Code Section 12022.55, intending to injure or kill someone while discharging a weapon from a vehicle is a felony. This is punishable by a much harsher sentence of up to 10 years in state prison.¹⁵

Call the Criminal Defense Attorneys at Wallin & Klarich Today

If you or a loved one is accused of committing a drive-by, or is involved in any other violation of California Penal Code Section 26100, it is important that you contact an experienced attorney immediately. These allegations are very serious, even if you were not the one who discharged the weapon. Let our team of attorneys at Wallin & Klarich provide you with an aggressive defense and help you move on with your life with the best possible outcome. We have been successfully defending our clients accused of this crime for over 40 years.

With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, Wallin & Klarich is available to provide round-the-clock support for you no matter where you work or live.

Call us at (877) 4-NO-JAIL or (877) 466-5245 to discuss your case. We will be there when you call.

^{1. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=26001-27000&file=26100↩}

^{2. http://legal-dictionary.thefreedictionary.com/malicious↩}

^{3. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=26001-27000&file=26100↩}

^{4. Id.↩}

^{5. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=26001-27000&file=26100↩}

^{6. Id.↩}

^{7. http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/pdf/cfl2013.pdf↩}

^{8. http://codes.lp.findlaw.com/cacode/PEN/3/1/7/11/s186.22↩}

^{9. Id.↩}

^{10. Id.↩}

^{11. http://www.threestrikes.org/tscrimes.html↩}

^{12. Id.↩}

^{13. Id.↩}

^{14. Id.↩}

^{15. https://www.dmv.ca.gov/pubs/vctop/appndxa/penalco/penco12022_55.htm↩}