California's "Drive-By Shooting"
(from a motor vehicle) Law
Penal Code 12034 PC
Charged with participating in a "drive-by shooting"? Our California criminal defense attorneys can help. As former cops and prosecutors, we know the most effective ways to defend against this serious California firearms offense.
Below, our California criminal defense attorneys1 explain
1. The Legal Definition of
"Drive-By Shooting"
2. Legal Defenses
3. Penalties, Punishment, and
Sentencing
4. Penal Code 12022.55 PC California's
"Drive-By Shooting" Sentencing Enhancement
and its Related Firearm Sentencing
Enhancements
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California Firearms Offenses; Penal Code 246.3 PC California's Negligent Discharge of a Firearm Law; Penal Code 246 PC Shooting at an Inhabited Dwelling or Occupied Car; Penal Code 12025 PC Carrying a Concealed Weapon Law; Penal Code 12031 PC Carrying a Loaded Firearm; Penal Code 12020 PC Possessing Dangerous Weapons; Penal Code 12280 PC Assault Weapons; Penal Code 12021 PC Felon with a Firearm; Penal Code 187 PC Murder; California's Felony-Murder Rule; Legal Defenses; California's Self-Defense Laws; Restoring Your California Gun Rights; California's Sentencing Enhancement for Personally Using a Gun; California's "10-20-Life 'Use a Gun and You're Done'" Law; Penal Code 186.22 PC California's Street Gang Sentencing Enhancement; and California's Three Strikes Law.
1. The Legal Definition of "Drive-By Shooting"
Penal Code 12034 PC is technically known as "discharging a firearm from a motor vehicle". It is commonly referred to as California's "drive-by shooting" law. This law prohibits a variety of conduct, which includes
- being the driver or owner of a car and knowingly allowing another person to bring a gun into the car,
- being the driver or owner of a car and knowingly allowing another person to discharge a gun from within the car,
- willfully and maliciously shooting at another person from within a car, and
- willfully and maliciously firing a gun from within a car.2
And despite the fact that this offense is commonly referred to as a "drive-by shooting", there is no requirement that the car actually be moving. As long as the shots are fired from within a car (idle or not), this law applies.3
Let's take a closer look at some of these terms/phrases to gain a better understanding of their legal definitions.
Knowingly
"Knowingly" means with knowledge. Knowledge of the unlawfulness of the act isn't required.4 This means that if a driver or owner of a car knows that a passenger is carrying a firearm in the car…even if the driver/owner doesn't know that such conduct is illegal…the driver/owner is still knowingly allowing the passenger to carry the gun.
Similarly, there is no requirement that the driver/owner know that the gun is loaded. Simply allowing any gun into the car violates this law.5
And because the purpose of this law is to punish those who provide transportation to armed passengers,6 an owner of a car may be convicted of this offense even if he/she isn't present in the car as long as he/she knowingly authorizes an armed person to borrow his/her car.7
Willfully and maliciously
You act "willfully" when you commit an act willingly or on purpose. It doesn't matter if you don't intend to break the law as long as the act is intentional.8 You act "maliciously" when you intentionally commit a wrongful act or act with the intent of defrauding, annoying, or injuring another person or property.9
This essentially means that unless you can prove that you "accidentally" discharged your gun from the car, it will be presumed that you did so willfully and maliciously.
Related offenses
If the firearm that you allegedly use is classified as either a "dangerous" firearm or an assault weapon, you face additional charges under Penal Code 12020 PC California's possessing dangerous weapons law or Penal Code 12280 PC California's law against possessing assault weapons.10
And if the "drive-by" is directed at a home or occupied car, you face additional charges under Penal Code 246 PC California's law against shooting at an inhabited dwelling or occupied car.11
2. Legal Defenses
There are a variety of legal defenses to Penal Code 12034 PC California's "drive-by shooting" law that your criminal defense lawyer could present on your behalf. Below are examples of some of the most common.
You didn't know your passenger had a gun
It bears repeating that, as a driver or owner of a car, prosecutors can't convict you of this offense unless you know your passenger is carrying a gun. It therefore follows that if, for example, one of your passengers is carrying a concealed weapon in violation of Penal Code 12025 PC California's concealed weapons law…and you don't know that this is the case…you aren't guilty of this offense.
You didn't allow your passenger to carry or shoot a gun
Similarly, if, as the driver or owner of the car, you don't allow your passenger to carry or discharge a gun, you don't violate this law. If, for example, a passenger gets into your car and points the gun to your head, instructing you to drive, then you haven't allowed him to carry the gun. Yes, you know about the gun, but you haven't knowingly allowed him to carry it into the car.
Along these same lines, let's say that you don't know that your passenger is armed. At some point during the drive, he rolls down his window and says he's going to shoot at Mark's house.
You stop the car, and tell him he can't do that in your car. He informs you that if you don't continue driving to Mark's so he can fire, he'll shoot you instead. "Duress" excuses your conduct, since you are not voluntarily allowing him to shoot his gun from inside your car.
Self –defense / defense of others
California's self-defense laws allow you to use reasonable force to defend yourself or another person if you reasonably believe that you or that other person is about to suffer imminent bodily harm. And if deadly force is used against you, you are allowed to counter with deadly force…even if you do not first retreat.12
This means that if, for example, you only shoot your gun because someone else is shooting at you…during an incident which you did not provoke…California's self-defense laws will excuse your otherwise criminal conduct.
However, even if self-defense excuses your act of discharging a firearm from a motor vehicle under Penal Code 12034 PC, prosecutors will still likely charge you with Penal Code 12031 PC California's law against carrying a loaded gun.13
3. Penalties, Punishment, and Sentencing
Depending on the exact offense and on the circumstances of the offense, Penal Code 12034 PC California's "drive-by shooting" law can either be charged as a misdemeanor or a felony.
Penalties for drivers/owners
If you are a driver or owner of a car who allows a passenger to carry a gun into the car, you face a misdemeanor punishable by up to six months in a county jail and/or a maximum $1,000 fine.14
Allowing a passenger to discharge his/her firearm from the car is what's known as a "wobbler" which means that prosecutors can choose whether to file the charge as a misdemeanor or a felony.
If convicted of the misdemeanor, you face up to one year in jail and the same maximum $1,000 fine.15
If convicted of the felony, you face
- 16 months, or two, or three years in the California state prison, and
- up to $10,000 in fines.16
- three, five, or seven years in the state prison, and
- a maximum $10,000 fine.19
- you are the "shooter" in a "drive-by shooting", and
- shoot with the intent of causing great bodily injury or death, which
- actually causes another person to suffer great bodily injury or death,
- attempted murder, and
- Penal Code 187 PC California's murder law.
- the owner of the car,
- the driver of the car, and/or
- anyone else in the car "aiding and abetting" the shooter
Penalties for "shooters"
Discharging a firearm from within a car is also a wobbler. If convicted of the misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine.17 If convicted of the felony, you face the same felony punishment described above.18
Discharging a firearm from within a vehicle at another person is an automatic felony. If convicted of this offense, you face
Additional penalties that may be imposed in connection with a felony conviction
In addition to the above penalties, there are some other penalties that may arise in connection with a felony conviction. These include (but are not necessarily limited to):
California's Three Strikes Law
A felony conviction for California's "drive-by shooting" law is considered a "serious" felony.20 As such, a felony conviction will result in a "strike" on your criminal record pursuant to California's Three Strike's Law.21
If you are subsequently convicted of any felony, and have a prior "strike" on your record, you will be referred to as a "second striker," and your sentence will be twice the term otherwise required by law.22
If convicted of a third felony, and you have two prior strikes, you will be referred to as a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in California state prison.23
California firearm offenses and aliens
If you are a legal immigrant or legal alien, a Penal Code 12034 PC conviction could additionally result in deportation.24 For more information about how California's firearm laws affect aliens, please visit our article on California crimes that lead to deportation.
Revocation of your right to own or acquire firearms
In addition to the above penalties, a conviction under Penal Code 12034 PC will result in the loss of your Second Amendment right to bear arms.
If convicted of engaging in a "drive-by shooting" as a felony, Penal Code 12021 PC California's "felon with a firearm" law prohibits you from owning or acquiring firearms for life. If convicted of engaging in a "drive-by shooting" as a misdemeanor, you will be prohibited from owning or acquiring firearms for a period of ten years.25
With respect to a misdemeanor conviction, you must simply wait out the ten-year period before regaining your firearms rights. And with respect to a felony conviction, the only way to restore your California gun rights is to have the felony reduced to a misdemeanor.26
Discharging a firearm from a motor vehicle and its connection to murder
If the prosecution believes that you had "the specific intent to kill" when you fired your gun, it may charge you with attempted murder for engaging in a "drive-by shooting". If convicted of attempted murder, you face a life sentence with the possibility of parole.27
If the "drive-by shooting" actually results in death, prosecutors have several options.
The first is to charge you with violating Penal Code 187 PC California's murder law. If the prosecution convicts you of first-degree murder by proving that you intended to kill the victim, you face a life sentence without the possibility of parole or 25-years-to-life in prison. If convicted of second-degree murder, you face 20-years-to-life.28
The second option is to charge you in connection with California's felony-murder rule. The purpose behind this rule is to ensure that people who engage in reckless behavior aren't excused from killing someone just because it wasn't part of their original plan.
Where applicable, this law holds you (and anyone who aids or abets you) responsible for any deaths that result from the "drive-by shooting" whether they are intentional or even accidental.29
4. Penal Code 12022.55 PC California's
"Drive-By Shooting" Sentencing
Enhancement and its Related Firearm
Sentencing Enhancements
Penal Code 12022.55 PC is a California sentencing enhancement for personally using a gun. A "sentencing enhancement" enhances a prison sentence by making it longer. In this case, if
you face a five, six, or ten-year prison term in addition and consecutive to the penalty you receive for the underlying offense.30
The "underlying offense" is the original charge that triggers this sentencing enhancement. Typically the underlying offense would be Penal Code 12034 PC California's "drive-by shooting" law. However, an underlying offense for this enhancement also includes (but is not limited to):
Persons subject to this enhancement
Only the actual "shooter" is subject to this "drive-by shooting" enhancement. This means that
does not face additional punishment under Penal Code 12022.55 PC.31 That said, these persons may still face liability for the conduct and for any resulting injuries or deaths under other California criminal laws, including Penal Code 12034 PC.32
Defenses to California's "drive-by shooting" sentencing enhancement
Before prosecutors can convict you of California's "drive-by shooting" sentencing enhancement, they must prove that you had "the intent to inflict great bodily injury or death".33 This means that if, for example, you are not aiming at someone, but only intend to scare someone, you would not be guilty of violating Penal Code 12022.55 PC.
Similarly, if, for example, while you're driving around celebrating, you fire a couple of shots into the air…but do not intend to harm anyone…Penal Code 12022.55 PC doesn't apply.
However, under both of these scenarios, you would still likely face prosecution under Penal Code 12034 PC and/or Penal Code 246.3 PC California's "negligent discharge of a firearm" law.34
Related sentencing enhancements
Penal Code 12022.55 PC isn't the only enhancement that you face for discharging a firearm from a motor vehicle. In fact, there are a number of additional enhancements that the prosecutor may elect to charge you with, depending on the circumstances of the case. Some of these include (but are not limited to):
Penal Code 186.22 PC California's criminal street gang sentencing enhancement
Penal Code 186.22 PC California's criminal street gang sentencing enhancement increases the punishment for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members".
If you are convicted of a gang-related "drive-by shooting", you face 15-years-to-life in the state prison.35
Penal Code 12022.53 PC California's "10-20-life 'use a gun and you're done'" law
If you actually cause death or great bodily injury to another person when you commit a "drive-by shooting", you face an additional and consecutive 25-years-to-life under Penal Code 12022.53 PC California's "10-20-life 'use a gun and you're done'" law.36
This is the case even if it isn't the gunshot wound that ultimately injures or kills the victim, as long as the shooting was the proximate cause of the death or injury.37
"A proximate cause of injury or death is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the great bodily injury or death and without which the great bodily injury or death would not have occurred."38
Multiple penalties / multiple enhancements
The good news is that California law typically prohibits the court from imposing multiple punishments for the same underlying offense. The same generally holds true for multiple enhancements as well.
But these laws are technical and complex, which is why it is critical to consult with a criminal defense attorney who truly understands California firearm offenses and California sentencing schemes.
As Orange County criminal defense attorney Zachary McCready39 explains, "Overzealous prosecutors and inexperienced judges have been known to impose illegal sentences. And when it comes to California gun laws, overlapping charges and inappropriate sentencing enhancements can add decades to a defendant's sentence if not caught by an experienced lawyer."
Call us for help…
For more information about California's "drive-by shooting" laws, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada's firearm and weapons laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.40
Legal References:
1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2California Penal Code 12034 PC -- California's "drive-by shooting" law. ("(a) It is a misdemeanor for a driver of any motor vehicle or the owner of any motor vehicle, whether or not the owner of the vehicle is occupying the vehicle, knowingly to permit any other person to carry into or bring into the vehicle a firearm in violation of Section 12031 of this code or Section 2006 of the Fish and Game Code. (b) Any driver or owner of any vehicle, whether or not the owner of the vehicle is occupying the vehicle, who knowingly permits any other person to discharge any firearm from the vehicle is punishable by imprisonment in the county jail for not more than one year or in state prison for 16 months or two or three years. (c) Any person who willfully and maliciously discharges a firearm from a motor vehicle at another person other than an occupant of a motor vehicle is guilty of a felony punishable by imprisonment in state prison for three, five, or seven years. (d) Except as provided in Section 3002 of the Fish and Game Code, any person who willfully and maliciously discharges a firearm from a motor vehicle is guilty of a public offense punishable by imprisonment in the county jail for not more than one year or in the state prison.")
3Although there is nothing in the code that specifically addresses this issue, it is addressed in People v. Bostick as applied to Penal Code 12022.55 PC, the California "drive-by shooting" sentencing enhancement that uses the same language. People v. Bostick (1996) 46 Cal.App.4th 287, 291. ("Bostick contends that this section "requires a finding that the shooting occurred from a vehicle which was involved in an actual drive-by on a public street or highway," and the jury should have been so instructed…The contention, made without any supporting case authority, must be rejected. [California Penal Code] Section 12022.55 is plain on its face that all that is required is that death or great bodily injury be inflicted "as a result of discharging a firearm from a motor vehicle." The term "drive-by" does not appear anywhere and Bostick cites no language remotely suggesting the vehicle must be in motion for the enhancement to apply. It is a cardinal rule that where a statute is facially clear and unambiguous, no judicial interpretation is necessary.")
4California Jury Instructions, criminal CALJIC 1.21 -- Knowledge, defined. ("The word "knowingly," means with knowledge of the existence of the facts in question. Knowledge of the unlawfulness of any act or omission is not required. [A requirement of knowledge does not mean that the act must be done with any specific intent.]")
5In re Ramon A. (1995) 40 Cal.App.4th 935, 941. ("This legislative objective-to deter drive-by shootings by making an owner or driver criminally responsible for the presence of loaded guns in the vehicle-cannot be effectively served if conviction under section 12034 requires proof of knowledge that the gun was loaded. The fact that a gun is loaded is rarely evident without inspection. Even if the driver possesses such knowledge, it can only be proven by an admission, or by evidence that another person told the driver the gun was loaded, that the act of loading occurred in the driver's presence, or that the driver acquired such knowledge from some other event, such as the gun's being fired. Rare indeed will be the prosecution under section 12034 in which any such evidence is available. As a practical matter, then, appellant's reading would render the statute largely impotent to achieve its avowed purpose.")
6See same. ("Here there can be no doubt about the purpose of section 12034: to penalize those who furnish transportation to armed passengers.")
7See California Penal Code 12034 PC -- California's "drive-by shooting" law, endnote 2, above.
8CALJIC 1.20 -- Willfully. ("The word "willfully" when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word "willfully" does not require any intent to violate the law, or to injure another, or to acquire any advantage.")
9CALJIC 1.22 -- Maliciously. ("The words "malice" and "maliciously" mean a wish to vex, [defraud,] annoy or injure another person, or an intent to do a wrongful act.")
10California Penal Code 12020 PC -- Manufacture, import, sale, supply or possession of certain weapons and explosives; punishment; exceptions; definitions. ("(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: (1) …possesses any cane gun or wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a firearm, any camouflaging firearm container, any ammunition which contains or consists of any fléchette dart, any bullet containing or carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, any shuriken, any unconventional pistol, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any writing pen knife, any metal military practice handgrenade or metal replica handgrenade, or any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.")
See also California Penal Code 12280 PC -- Manufacture, distribution, transportation, importation, sale, possession, or lending of assault weapon or .50 BMG rifle; punishment; commission of other crime. ("(b) Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment in the state prison…(c) Any person who, within this state, possesses any .50 BMG rifle, except as provided in this chapter, shall be punished by a fine of one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed one year, or by both that fine and imprisonment…(d) Notwithstanding Section 654 or any other provision of law, any person who commits another crime while violating this section may receive an additional, consecutive punishment of one year for violating this section in addition and consecutive to the punishment, including enhancements, which is prescribed for the other crime.")
11California Penal Code 246 PC -- Shooting at inhabited dwelling house, occupied building, vehicle, or aircraft, or inhabited housecar or camper; punishment. ("Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year. As used in this section, "inhabited" means currently being used for dwelling purposes, whether occupied or not.")
12Judicial Council Of California Criminal Jury Instruction 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide). ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party<) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")
13California Penal Code 12031 -- Carrying loaded firearms. ("(a)(1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.")
14See California Penal Code 12034 PC -- California's "drive-by shooting" law, endnote 2, above.
15See same. See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
16See same.
17See same.
18See same.
19See same.
20California Penal Code 1192.7 PC -- Serious felonies. ("(c) As used in this section, "serious felony" means any of the following…(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm…")
21California Penal Code 667 PC -- Habitual criminals; enhancement of sentence; amendment of section. ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")
22California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section -- California Three Strikes law. ("(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the [California] state prison for 25 years…")
23See same.
248 U.S. Code Section 1227 -- Deportable aliens. ("(a) Classes of deportable aliens. Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens…(2) Criminal offenses…(C) Certain firearm offenses -- Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18) in violation of any law is deportable.") Because Penal Code 12034 PC California's "drive-by shooting" law involves using a firearm, it is a California crime that can lead to deportation.
25California Penal Code 12021 PC -- Felon with a firearm. ("(a)(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country…and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony…(c)(1) Except as provided in subdivision (a) or paragraph (2) of this subdivision, any person who has been convicted of a misdemeanor violation of…subdivision (b) or (d) of [Penal Code] 12034 [California's "drive-by shooting" law]…and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.")
26If you have your Penal Code 12034 PC felony conviction reduced to a misdemeanor, you are therefore only subject to the ten-year firearms ban imposed under Penal Code 12021(c)(1) PC.
27California Penal Code 664 PC -- Attempts. ("Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (a) If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. ")
28California Penal Code 189 -- Murder; degrees. ("…any murder which is perpetrated by means of discharging a firearm from a motor vehicle [that is, a drive-by shooting], intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.")
See also California Penal Code 190 -- Punishment for murder. ("(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life…(d) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 20 years to life if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury.")
29People v. Cavitt (2004) 33 Cal.4th 187, 197. ("The purpose of the felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a co-felon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony.")
30California Penal Code 12022.55 PC -- California's "drive-by shooting" law. ("Notwithstanding Penal Code Section 12022.5, any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, as defined in Section 12022.7, or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony, shall be punished by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10 years.")
31People v. Myers (1997) 59 Cal.App.4th 1523, 1532. ("Unlike Penal Code section 12022.5, which focuses on a defendant's use of a firearm, Penal Code section 12022.55 [California's "drive-by shooting" law] focuses on the victim's injuries. It specifically "requires that the defendant intend to and actually inflict great bodily injury on a victim." ( People v. Alvarez, supra, 9 Cal.App.4th at p. 128, 11 Cal.Rptr.2d 463.) Section 12022.55 enhancements may only be imposed upon the person who actually fires the weapon, it cannot be imposed on an aider and abettor. (In re Jose D. (1990) 219 Cal.App.3d 582, 268 Cal.Rptr. 364.)")
32Penal Code 12034(a) PC California's discharging a firearm from a motor vehicle law penalizes the driver or owner of a car (even if not in the car at the time) for knowingly allowing another person to carry a loaded gun into the car. As long as the driver knows about the existence of the gun, it is not a defense to claim that he/she didn't know it was loaded. Subdivision "b" punishes the driver or owner (again, even if not in the car at the time) for allowing another person to discharge the firearm from the car. Penal Code 186.22 PC California's criminal street gang enhancement holds all persons who are affiliated with a gang responsible for any injury or death committed for the benefit of or at the direction of the gang. Similarly, aiders and abettors are generally held liable for any deaths that occur if the underlying activity is inherently dangerous in nature or is a crime subjecting the shooter to first-degree murder under California's felony murder rule.
33See Penal Code 12022.55 PC, California's "drive-by shooting" enhancement, endnote 30, above.
34Penal Code 246.3 PC -- California's negligent discharge of a firearm law. ("(a) Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison. (b) Except as otherwise authorized by law, any person who willfully discharges a BB device in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year. (c) As used in this section, "BB device" means any instrument that expels a projectile, such as a BB or a pellet, through the force of air pressure, gas pressure, or spring action.")
35Penal Code 186.22 PC -- California's criminal street gang enhancement law. ("(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph. (B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of [Penal Code] Section 12022.55 [California's "drive-by shooting" enhancement].")
36California Penal Code 12022.53 PC -- California's 10-20-life "use a gun and you're done" law. ("(d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.")
37People v. Bland (2002) 28 Cal.4th 313, 338. ("However, as we have seen, section 12022.53(d) does not require that the defendant fire a bullet that directly inflicts the harm. The enhancement applies so long as defendant's personal discharge of a firearm was a proximate, i.e., a substantial, factor contributing to the result.")
38People v. Zarazua (2008) 162 Cal.App.4th 1348, 1361.
See also California Jury Instructions, Criminal. CALJIC 17.19.5.
39Orange County criminal defense attorney Zachary McCready defends clients accused of violating California's firearms laws throughout Orange County, including Fullerton, Anaheim, Newport Beach, Santa Ana, Irvine and Westminster.
40Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's firearm and weapons laws. Their Nevada law offices are located in Reno and Las Vegas.
