Penal Code 26100 PC is the California statute that defines the crime commonly known as "drive-by shooting." This section makes it a crime if one (1) allows another person to bring a gun into his vehicle, or (2) fires a gun from a vehicle.
The statute says:
“It is a misdemeanor for a driver of any motor vehicle or the owner of any motor vehicle…to permit any other person to…bring into the vehicle a firearm…
Any driver or owner of any 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.
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.”
- letting a friend bring a pistol into a car.
- shooting a rifle from a vehicle while it's moving.
- allowing a passenger to shoot a gun from a truck.
An accused can fight a 26100 PC charge by raising a legal defense. A few common defenses are:
- no knowledge of a gun,
- no willful or malicious act, and/or
A violation of this code section can be charged as either:
- a misdemeanor,
- a straight felony, or
- a wobbler (which means a prosecutor can charge it as either a misdemeanor or a felony).
The penalties can range from:
- custody in county jail for six months, to
- seven years in state prison.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is a crime under Penal Code 26100?
- 2. Are there legal defenses for drive-by shooting?
- 3. What are the penalties?
- 4. Are there immigration consequences?
- 5. Can a person get a conviction expunged?
- 6. Does a conviction affect gun rights?
- 7. Are there related offenses?
1. What is a crime under PC 26100?
California's drive-by shooting law makes it a crime for a driver or owner of a car to either:
- allow another person to bring a gun into the car, or
- allow another person to shoot a gun from within the car.1
The law also makes it a crime for a person to either:
- willfully and maliciously fire a gun from within in a car, or
- willfully and maliciously shoot at another person from within a car.2
Note that a vehicle does not have to be moving for a person to be convicted under this statute.
Questions often arise under this code section on the meaning of:
- willfully and maliciously, and
- motor vehicle.
1.1. Willfully and maliciously
For purposes of this statute, a person acts “willfully” when he commits an act:
- willingly, or
- on purpose.3
A person acts “maliciously” if he:
- intentionally commits a wrongful act, or
- acts with the intent to disturb or injure someone else.4
Example: Pete is in the back of a car playing with a loaded gun. The gun fires on accident. Here, Pete is not guilty under Penal Code 26100. The firearm shot off by accident and not because of Pete's willful and malicious act.
He would be guilty, though, if he:
- grabbed the gun,
- aimed it out the window at another person, and
- fired it.
His here acts are both willful and malicious.
1.2. Motor vehicle
A “motor vehicle,” under this statute, includes a:
- passenger vehicle,
- motor scooter,
- school bus,
- commercial vehicle,
- truck, and
- tractor and trailer.5
2. Are there legal defenses?
A defendant can challenge a drive-by shooting charge with a legal defense.
Three common defenses are:
- no knowledge of a gun,
- no willful or malicious act, and/or
2.1. No knowledge of a gun
It is a crime under PC 26100 if a driver of a car allows a passenger to bring a gun into his vehicle. But this is only true if the driver knows the passenger does in fact have a firearm. This means it is a defense for the defendant to say that he did not have this knowledge. Perhaps, for example, a passenger had a concealed gun.
2.2. No willful or malicious act
Please recall that a shooter is only guilty under this law if he fires a gun:
- willfully, and
It is a valid defense, therefore, for an accused to show that he did not act with this intent. Perhaps, for example, a gun fired on accident.
A defendant can try to beat a drive-by shooting charge by saying that he fired a gun in self-defense.
This defense will work if the accused:
- believed that he was in “imminent danger,”
- believed that force was necessary to stop the danger, and
- used an appropriate level of force in defense.6
3. What are the penalties for drive-by shooting?
A violation of this statute can be charged as either:
- a misdemeanor,
- a wobbler, or
- a straight felony.
It is a misdemeanor if a driver lets a person bring a gun into his car. The offense is punishable by:
- imprisonment in county jail for six months, and/or
- a maximum fine of $1,000.7
It is a wobbler if:
- a person fires a gun from a car, or
- a driver allows a passenger to shoot a gun from within his car.
A wobbler means the crime can be charged as either a misdemeanor or a felony.
If charged as a misdemeanor, either of these offenses are punishable by:
- custody in county jail for up to one year, and/or
- a maximum fine of $1,000.8
If charged as a felony, either of these crimes are punishable by:
- imprisonment in state prison for up to three years, and/or
- a maximum fine of $10,000.9
It is a straight felony if a person shoots a gun at another person while in a car. The offense is punishable by:
- custody in state prison for up to seven years, and/or
- a maximum fine of $10,000.10
4. Are there immigration consequences?
A conviction of this law could have negative immigration consequences.
United States immigration law says that certain kinds of criminal convictions can lead to:
Categories of “deportable” or “inadmissible” crimes include:
This means that:
- depending on the specific facts of a case,
- a PC 26100 conviction could mean deportation or inadmissibility.
5. Can a person get a conviction expunged?
A person convicted of this crime is entitled to an expungement if he:
- successfully completes probation, or
- completes a jail term (whichever is relevant).
If a party violates a probation term, he could still possibly get the offense expunged. But this would be in the judge's discretion.
Under Penal Code 1203.4, an expungement releases an individual from virtually "all penalties and disabilities" arising out of the conviction.12
6. Does a conviction affect gun rights?
A conviction under this statute will have a negative effect on the defendant's gun rights.
A misdemeanor conviction under this law results in a 10-year ban on owning a gun.
A felony conviction results in a lifetime ban.
7. Are there related offenses?
There are three crimes related to shooting from a motor vehicle. These are:
- shooting at an inhabited dwelling – PC 246,
- assault with a firearm – PC 245a2, and
- “10-20-Life” law – PC 12022.53.
7.1. Shooting at an inhabited dwelling – PC 246
Penal Code 246 PC, makes it a crime to fire a gun at any of the following:
- an inhabited dwelling,
- an occupied building,
- an occupied motor vehicle,
- an occupied aircraft, or
- an inhabited house car (such as an RV or camper).
Note that if this shooting takes place from within a car, the accused can be charged with both:
- PC 246, and
- PC 26100.
7.2. Assault with a firearm – PC 245a2
Penal Code 245a2 PC makes it a crime for a person to:
- commit an assault, and
- do so while using a firearm.
Note that a person can commit this crime without either:
- shooting a gun, or
- having a loaded gun.
7.3. “10-20-Life” law – PC 12022.53
Penal Code 12022.53 PC is California's "10-20-life - use a gun and you're done" law.
It provides an "enhancement" to a California state prison sentence for certain serious felonies when the perpetrator uses a gun in the commission of the crime. An enhancement means a longer sentence.
The law can be applied in serious felony drive-by shooting cases.
For additional help...
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
For information on drive-by shooting charges in Nevada, please see our articles on Drive-by Shootings in Nevada Law.
California Penal Code 26100 PC.
CALCRIM No. 968 - Shooting from Motor Vehicle. Judicial Council of California Criminal Jury Instructions (2017 edition). See also In re Jerry R. (1994) 29 Cal.App.4th 1432.
CALCRIM No. 968 - Shooting from Motor Vehicle.
CALCRIM No. 3470 - Right to Self-Defense or Defense of Another. Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Humphrey (1996) 13 Cal.4th 1073.
California Penal Code 26100a PC.
California Penal Code 26100b and c PC.
See same. See also California Penal Code 672 PC.
See INA 237 (a) (2) (A).
California Penal Code 1203.4 PC.