Penal Code 26100 PC1 is the California statute that defines the crime of "discharging a firearm from a motor vehicle." It is commonly referred to, however, as California's "drive-by shooting" law.
This section prohibits more than just trying to shoot someone from a motor vehicle. It makes it illegal to:
- Allow a passenger to bring a gun into your car;2
- Allow a passenger to fire a gun from your car.3
- Discharge a gun from within a car;4 or
- Shoot at someone from a car.5
Knowingly allowing a passenger to bring a gun into your car is a misdemeanor. It is punishable by up to 6 months in jail and/or up to a $1,000 fine.6
If convicted of misdemeanor discharging a gun from your car... or allowing a passenger to do so... you face:
- up to one year in jail, and/or
- a maximum $1,000 fine.8
If convicted of either of these acts as a felony, you could be punished by:
- 16 months, two (2) years, or three (3) years in the California state prison, and/or
- up to a $10,000 fine.9
And if you shoot at another person from a car, it is an automatic ("straight") felony. If convicted of this offense, you face:
- three, five, or seven years in the state prison, and/or
- a maximum $10,000 fine.
As with many other California firearms laws, a conviction under Penal Code 26100 could result in the revocation of your right to own a gun. The ban on owning a gun is 10 years for a misdemeanor violation. A felony conviction for shooting at someone from a vehicle will result in a lifetime ban.
In addition, a felony drive-by shooting conviction is a "strike" under Penal Code 667, California's "Three-Strikes" law.
But there are a variety of legal defenses to California's "drive-by shooting" law. These include (but are not limited to):
- You didn't know your passenger had a gun;
- You didn't allow your passenger to carry or shoot a gun;
- You shot a gun from a car in self–defense, or to defend someone else;
- The gun was found during an illegal search; and
- The police engaged in misconduct.
Below, our California criminal defense attorneys10 explain:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Penal Code 26100 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, including:
- being the driver or owner of a car and allowing another person to bring a gun into the car,
- being the driver or owner of a car and allowing another person to discharge a gun from within the car,11
- willfully and maliciously shooting at another person from within a car, and
- willfully and maliciously firing a gun from within a car.12
Despite the fact that this offense is commonly referred to as "drive-by shooting," there is no requirement that the car actually is moving. As long as the shots are fired from within a car (idle or not), the enhancement applies.13
Let's take a closer look at some of these terms/phrases to gain a better understanding of their legal definitions.
You act "willfully" when you commit an act willingly or on purpose.14
You act "maliciously" when you intentionally commit a wrongful act or you act with the intent to:
- annoy, or
So unless you can prove that you "accidentally" discharged your gun from the car, it will be presumed that you did so willfully and maliciously.
You face additional charges if you violate:
- Penal Code 16590 PC, California's ban on "generally prohibited weapons,"16
- Penal Code 30600 PC, California's law against possessing assault weapons,17 or
- Penal Code 246 PC, California's law against shooting at an inhabited dwelling or occupied car.18
There are a variety of legal defenses to Penal Code 26100 PC, California's "drive-by shooting" law. Below are examples of some of the most common ones.
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.
Example: one of your passengers is carrying a concealed weapon in violation of Penal Code 25400 PC, California's concealed weapons law. But you don't know about the gun. Therefore, you aren't guilty of this offense.
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.
Example: A passenger gets into your car and points a gun to your head, instructing you to drive. Yes, you know about the gun. But you haven't knowingly allowed him to carry it into the car. So you aren't guilty of violating Penal Code 26100.
Example: 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, he'll shoot you instead. "Duress" excuses your conduct, since you are not voluntarily allowing him to shoot his gun from inside your car.
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 or unlawful touching,
- you reasonably believe that the immediate use of force is necessary to defend against that danger, and
- you use no more force than is reasonably necessary to defend against that danger.19
If these three conditions are met, California's "stand your ground" rule applies. This means you may use reasonable force to defend yourself or another person...even if you are safely able to retreat.20
Example: You shoot a gun from a car only because someone else is shooting at you. You did not provoke the incident. California's self-defense laws excuse your otherwise criminal act of discharging a firearm from a motor vehicle under Penal Code 26100 PC.
Note, however, that prosecutors will still likely charge you with Penal Code 25850 PC California's law against carrying a loaded firearm in public.21
Penal Code 26100 PC, California's "drive-by shooting" law can be charged as either a misdemeanor or a felony. Which is charged depends on the exact offense and circumstances.
If you are a driver or owner of a car who allows a passenger to carry a gun in a car, you are guilty of a misdemeanor. You face:
- up to six (6) months in a county jail, and/or
- a maximum $1,000 fine.22
Allowing a passenger to discharge a firearm from the car is what's known as a "wobbler" offense. Prosecutors can choose to charge a wobbler as either or a misdemeanor or a felony.
If convicted of the misdemeanor, you face:
- up to one year in jail, and/or
- a maximum $1,000 fine.23
If convicted of the felony, you could be punished by:
- 16 months, two (2) years, or three (3) years in the California state prison, and/or
- up to a $10,000 fine.24
Discharging a firearm from within a car is also a "wobbler". If convicted of the misdemeanor, you face:
- up to one (1) year in a county jail, and/or
- a maximum $1,000 fine.25
If convicted of the felony, you face
- 16 months, two (2) years, or three (3) years in the California state prison, and/or
- up to a $10,000 fine.26
Discharging a firearm from within a vehicle at another person is an automatic ("straight")
felony. If convicted of this offense, you face:
- three, five, or seven years in the state prison, and/or
- a maximum $10,000 fine.27
In addition to the above penalties, there are some other penalties that may arise in connection with a felony conviction.28 These include (but are not necessarily limited to):
A felony conviction for California's "drive-by shooting" law is considered a "serious" felony.29 As such, a felony conviction will result in a "strike" on your criminal record pursuant to California's Three Strikes Law.30
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." As a second striker, your sentence will be twice the term otherwise required by law.31
If convicted of a serious or violent felony... and you have two prior strikes... you become a "third striker." Third strikers must serve a mandatory minimum sentence of 25 years-to-life in California state prison.32
If you are a legal immigrant or legal alien, a Penal Code 26100 PC conviction could additionally result in deportation.33 For more information about how California's firearm laws affect aliens, please visit our article on California crimes that lead to deportation.
In addition to the above penalties, a conviction under Penal Code 26100 PC will result in the loss of your Second Amendment right to bear arms.
If convicted of engaging in felony "drive-by shooting," Penal Code 29800 PC, California's "felon with a firearm" law will prohibit you from owning or acquiring firearms for life.34 If convicted of engaging in a "drive-by shooting" as a misdemeanor, you will be prohibited from owning or acquiring guns for a period of 10 years.35
However, unless you have been convicted of a "straight" felony involving a firearm, you may be able to restore your California gun rights by:
- having a wobbler felony reduced to a misdemeanor,36
- obtaining a California Certificate of Rehabilitation and Governor's pardon,37 or
- if you are not eligible for a Certificate of Rehabilitation, obtaining a direct California Governor's pardon.38
Certain restrictions apply to each of these methods. For more information, please see our article on restoring your California gun rights.
If the prosecution believes that you had "the specific intent to kill" when you fired your gun in a "drive-by shooting," you could be charged with attempted murder. If convicted of attempted murder, you face a life sentence with the possibility of parole.39
If the "drive-by shooting" actually results in death, prosecutors have two charging options:
- Penal Code 187, PC California's murder law. If the prosecution proves that you intended to kill the victim, you could be convicted of first-degree murder. A first degree murder conviction could result in a life sentence without the possibility of parole, or 25-years-to-life in prison. If instead you are convicted of second-degree murder, you face 20-years-to-life.40
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." It applies to both intentional and accidental deaths.41
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.
The sentencing enhancement for personally using a gun applies if:
- you are the "shooter" in a "drive-by shooting", and
- you shoot with the intent of causing great bodily injury or death, and
- it actually causes another person to suffer great bodily injury or death.42
For purposes of this law, "great bodily injury" means a significant or substantial physical injury.43
Only the actual "shooter" is subject to this "drive-by shooting" enhancement. This means that:
- the owner of the car,
- the driver of the car, and/or
- anyone else in the car "aiding and abetting" the shooter...
do not face additional punishment under Penal Code 12022.55 PC.44 That said, these persons may still face liability for their conduct. This includes any resulting injuries or deaths under other California criminal laws, including Penal Code 26100 PC, the "drive-by" shooting law.45
If you personally use a gun as set forth above, you face a five (5), six (6), or 10-year prison term... in addition and consecutive to... the penalty you receive for the underlying offense.46
The "underlying offense" is the original charge that triggers this sentencing enhancement. Typically the underlying offense would be Penal Code 26100 PC, California's "drive-by shooting" law. However, an underlying offense for this enhancement may also include (but is not limited to):
- attempted murder, or
- Penal Code 187 PC, California's murder law.
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". This means that if, for example, you are not aiming at someone... but only intend to scare that person... you would not be guilty of violating Penal Code 12022.55 PC.
Similarly, for example, if 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 26100 PC and/or Penal Code 246.3 PC, California's "negligent discharge of a firearm" law.48
Penal Code 12022.55 PC is not 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, these might include (but are not limited to):
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, and
with the specific intent to:
- further, or
- assist in
any criminal conduct by gang members.49
If you are convicted of a gang-related "drive-by shooting", you face 15-years-to-life in the state prison.50
If you commit a "drive-by shooting," and it causes death or great bodily injury to another person, 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.51
The "10-20-life 'use a gun and you're done'" enhancement applies if:
- you personally discharged a firearm during the commission or attempted commission of a drive-by-shooting;
- you intended to discharge the firearm; and
- your act causes the great bodily injury or death of someone who was not your accomplice.52
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. This is why it is critical to consult with a criminal defense attorney who truly understands California firearm offenses and sentencing schemes.
As Orange County criminal defense attorney John Murray53 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...
If you or loved one is charged with Penal Code 26100 PC drive-by shooting and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada drive-by shooting 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.54
1 California Penal Code 26100 PC replaced former Penal Code 12034 PC without substantive change effective January 1, 2012.
2 California Penal Code 26100(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 25850 of this code or Section 2006 of the Fish and Game Code.
3 California Penal Code 26100(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.
4 California Penal Code 26100(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.
5 California Penal Code 26100 (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.
6 California Penal Code 26100(a), endnote 2, above.
7 California Penal Code 26100(b) and (c), endnotes 3 and 5, above.
8 See 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.
9 See same.
10 Our 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.
11 California Penal Code 26100(b), endnote 3, above.
12 California Penal Code 26100 PC, endnotes 2-5, above.
See also revised Judicial Council of California Jury Instructions (CALCRIM) 968 -- To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant willfully and maliciously shot a firearm from a motor vehicle(;/.)
<Give element 2 when defendant charged with Pen. Code, § 26100(c). > [AND]
[2. The defendant shot the firearm at another person who was not in a motor vehicle(;/.)]
<Give element 3 when instructing on self-defense or defense of another. > [AND
3. The defendant did not act (in self-defense/ [or] in defense of someone else).]
13 Although there is nothing in the code that specifically addresses this issue, it is addressed in People v. Bostick (1996) 46 Cal.App.4th 287, 291 as applied to Penal Code 12022.55 PC, the California "drive-by shooting" sentencing enhancement that uses the same language. ("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.")
14 See CALCRIM 968 -- Someone commits an act willfully when he or she does it willingly or on purpose.
15 See same -- Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, defraud, annoy, or injure someone else.
16 California Penal Code 16590 PC.
18 California Penal Code 246 PC -- Shooting at inhabited dwelling house, occupied building, vehicle, or aircraft, or inhabited housecar or camper; punishment.
19 CALCRIM 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide). The revised Judicial Council of California Jury Instructions (CALCRIM) became effective on February 26, 2013.
CALCRIM 3470 replaces CALJIC 5.50 which provided: "A person who is threatened with an attack that justifies the exercise of the right of self-defense, need not retreat. In the exercise of his right of self-defense, he may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and he may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene."
20 See People v. King (1978) 22 Cal. 3d 12, and People v. Rhodes (2005) 129 Cal.App.4th 1339, both accepting the language of former CALJIC No. 5.50.
California appellate courts have not yet ruled on whether the above cases are still valid expressions of California's "stand your ground" laws in light of the language of CALCRIM 3470.
21 California Penal Code 25850(a) -- A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the 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.
22 See California Penal Code 26100(b), endnotes 2-5, above.
23 See 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.")
24 See same.
23 See same.
26 See same.
27 See same.
28 See also, Collateral Consequences of a Felony Conviction.
29 California 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...
30 California 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.
31 California Penal Code 667(e)
32 See same.
33 8 USC 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 26100 PC, California's "drive-by shooting" law, involves using a firearm, it is a California crime that can lead to deportation.
34 California Penal Code 29800 PC.
35 Under California Penal Code 29805, there are about 40 specific misdemeanor convictions that carry a California 10-year firearms ban. These include (but are not limited to):
- sexual battery;
- domestic violence;
- stalking; and
- criminal threats.
36 If you have your Penal Code 26100 PC felony conviction reduced to a misdemeanor, you are therefore only subject to the ten-year firearms ban imposed.
37 See California Penal Code 4852.01-4852.21.
See also, State of California Office of the Governor, How to Apply for a Pardon
38 See same.
39 California Penal Code 664 PC
40 California Penal Code 189 -- Murder; degrees.
41People 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.")
42 California Penal Code 12022.55 -- Notwithstanding 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.
43 California Penal Code12022.7 PC(f) -- As used in this section, "great bodily injury" means a significant or substantial physical injury.
44 People 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.)")
45 California Penal Code 26100(a) penalizes the driver or owner of a car (even if not in the car at the time) for allowing another person to carry a loaded gun into the car. 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.
46 California Penal Code 12022.55 PC -- California's "drive-by shooting" enhancement, endnote 42, above.
47 See same.
48 Penal 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.
49 Penal Code 186.22 PC -- California's criminal street gang enhancement law
51 California Penal Code 12022.53(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 26100, 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.
See also CALCRIM 3149. Personally Used Firearm: Intentional Discharge Causing Injury or Death -- Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
52 CALCRIM 3149 -- Personally Used Firearm: Intentional Discharge Causing Injury or Death.
53 Orange County criminal defense attorney John Murray defends clients accused of violating California's firearms laws throughout Orange County, including Fullerton, Anaheim, Newport Beach, Santa Ana, Irvine and Westminster.
54 Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's firearm and weapons laws. Their Nevada law offices are located in Reno and Las Vegas.