Penal Code § 26100 PC – Shooting From a Motor Vehicle – California Law

Penal Code § 26100 PC prohibits either (a) willfully and maliciously discharging a firearm from your vehicle, or (b) allowing another person to bring a gun into your vehicle. This offense is generally prosecuted as a felony and is punishable by up to 7 years in state prison.

26100 PC is often referred to as California’s “drive-by shooting” law.

The full language of the code section reads as follows:

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.

(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.

Examples

• allowing a friend to bring a pistol into a car
• shooting a rifle from a vehicle while it is moving
• allowing a passenger to shoot a gun from a truck

Defenses

You can challenge these charges in court. A few common defenses are to show that there was

• no knowledge of a gun,
• no willful or malicious act, and/or
• self-defense.

Penalties

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 discuss the following in this article:

• 1. What is California law as to drive-by shootings?
• 2. What are the best defenses?
• 3. What are the penalties
• 4. Are there immigration consequences?
• 5. Can I get a conviction expunged?
• 6. Does a conviction affect gun rights?
• 7. Are there related offenses?
• Additional resources

1. What is California law as to drive-by shootings?

For you to be convicted of a drive-by shooting, the prosecutor has to prove the following elements:

1. you owned or were driving a car, and
2. you allowed another person to bring a gun into the car or to shoot a gun from within the car.¹

You can also be convicted of a drive-by shooting if the prosecutor proves these elements:

1. you willfully and maliciously fired a gun from within in a car, or
2. you willfully and maliciously shot at another person from within a car.²

Note that a vehicle does not have to be moving for you to be convicted under this statute.

Questions often arise under this code section on the meaning of:

• willfully and maliciously, and
• motor vehicle.

Willfully and maliciously

For purposes of this statute, you act “willfully” when you commit an act:

• willingly, or
• on purpose.³

You act “maliciously” if you:

• intentionally commit a wrongful act, or
• act 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.

You would be guilty, though, if you:

• grabbed the gun,
• aimed it out the window at another person, and
• fired it.

These acts are both willful and malicious.

Motor vehicle

A “motor vehicle,” under this statute, includes a:

• passenger vehicle,
• motorcycle,
• motor scooter,
• bus,
• school bus,
• commercial vehicle,
• truck, and
• tractor and trailer.⁵

2. What are the best defenses?

Here at Shouse Law Group, we have represented literally thousands of people charged with gun crimes, including drive-by shootings. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries at getting charges reduced or dismissed.

You had no knowledge of the gun

Letting someone with a gun into your vehicle is no crime as long as you were unaware they had a firearm. Perhaps, for example, the passenger you let in carried the gun concealed.

Claiming that you had no knowledge of the gun is a strong defense because there is no way for the prosecutor to get inside of your head and be sure of what you knew. Helpful evidence in this type of case includes:

• video surveillance footage
• eyewitness accounts
• the passenger’s CCW permit (if they had one)

There was no willful or malicious act

A key element of drive-by shooting cases is that you fired the gun willfully and maliciously. We have seen cases where a gun fired by accident or because the driver was in the throes of a medical episode such as a seizure: In both of these scenarios, no crime occurred because there was no intent.

We may be able to get a forensics expert to examine the gun and testify that it was defective. Or perhaps a medical expert can testify that you were not in control of your body at the time the gun was discharged.

You acted in self-defense

You can try to beat a drive-by shooting charge by saying that you fired a gun in self-defense. This defense will work if you:

• believed that you were in “imminent danger,”
• believed that force was necessary to stop the danger, and
• used an appropriate level of force in defense.⁶

When a shooting happens on a street, there is usually no shortage of available surveillance video available. We can use the footage to show that you acted reasonably under the circumstances by fighting back.

3. What are the penalties?

A violation of this statute can be charged as either:

• a misdemeanor,
• a wobbler, or
• a straight felony.

It is a misdemeanor if you let a person bring a gun into your 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:

• you fire a gun from your car, or
• you allow a passenger to shoot a gun from within your 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 you shoot 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?

Shooting from a motor vehicle could be a deportable offense.¹¹ If you are a non-citizen facing criminal charges, consult with an attorney as soon as possible to discuss the possibility of getting your charges dismissed or reduced to a non-deportable offense.

5. Can I get a conviction expunged?

If you are convicted of shooting from a motor vehicle, you are entitled to an expungement if you:

1. successfully complete probation, or
2. complete a jail term (whichever is relevant).

If you violate a probation term, you could still possibly get the offense expunged. Though this would be at the judge’s discretion.

Under Penal Code 1203.4, an expungement releases you 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 your 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:

1. shooting at an inhabited dwelling – PC 246,
2. assault with a firearm – PC 245a2, and
3. “10-20-Life” law – PC 12022.53.

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, you can be charged with both:

• PC 246, and
• PC 26100.

Assault with a firearm – PC 245a2

Penal Code 245a2 PC makes it a crime to:

1. commit an assault, and
2. do so while using a firearm.

Note that you can commit this crime without either:

• shooting a gun, or
• having a loaded gun.

“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 you use 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.

Additional resources

For more information, refer to the following:

• Gun Safety Rules – National Rifle Association
• Firearms Q&As – Bureau of Alcohol, Tobacco, Firearms and Explosives
• Handguns Certified for Sale – California Attorney General
• Bureau of Firearms – California Department of Justice
• National Instant Criminal Background Check System (NICS) – Federal Bureau of Investigation

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