CALIFORNIA PENAL CODE 26100 PC – SHOOTING FROM A MOTOR VEHICLE 

California Penal Code 26100 PC makes it unlawful to either intentionally and maliciously discharge a firearm from a vehicle or to permit someone else to bring a gun into your vehicle. This violation is typically treated as a felony and carries a potential punishment of up to 7 years in state prison.

Referred to as California’s “drive-by shooting” law, 26100 PC is designed to address and deter dangerous firearm-related incidents involving vehicles.

California Penal Code 26100 PC states that: (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.
Source: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=26100.&lawCode=PEN

ELEMENTS

In order to obtain a conviction for a drive-by shooting, the prosecutor must provide evidence of the following elements:

• Ownership or operation of a car by the defendant, and
• Permission given by the defendant to another person to bring a gun into the car or to discharge a firearm from within the car.

Additionally, a person can be found guilty of a drive-by shooting if the prosecutor can establish the following elements:

• Intentional and malicious firing of a gun from within a car, or
• Deliberate and malicious shooting at another person from inside a car.

It’s important to note that the vehicle does not have to be in motion for a conviction under this statute.

Questions frequently arise regarding the interpretation of:

• “willfully and maliciously”
• “motor vehicle”

The term “motor vehicle” in this particular law refers to a variety of vehicles including but not limited to:

• Passenger vehicles
• Motorcycles
• Motor scooters
• Buses
• School buses
• Commercial vehicles
• Trucks
• Tractors and trailers.

PENALTIES, PUNISHMENT, AND SENTENCING

Penal Code Section 26100 is classified as a wobbler offense. This means that the act of discharging a weapon from within a vehicle can be charged either as a felony or as a misdemeanor, depending on the circumstances and the discretion of the prosecution.

• If charged as a misdemeanor, a defendant could potentially be sentenced to up to one year in county jail or a term ranging from 16 months to three years in state prison and fine not more than $1000.
• If charged as a felony, a defendant could face a sentencing range of three, five, or seven years of incarceration. A straight felony charge if you shoot a gun at another person from a car, punishable by up to seven years in state prison and/or a fine of up to $10,000.

HOW TO FIGHT CHARGES AGAINST CALIFORNIA PENAL CODE 26100 PC

There are three defenses that have been highly effective in reducing or dismissing charges of drive-by shooting in courts, which include:

1. Lack of knowledge of the firearm: Allowing someone with a firearm into your vehicle is not illegal as long as you were unaware that they possessed a gun. Evidence such as video surveillance footage, eye witness statements, or a passenger’s CCW permit can be helpful in proving your lack of knowledge.
2. No willful or malicious action: To prove a drive-by shooting charge, the prosecution must prove intent behind firing the gun. Accidental firing or being in a medical state such as a seizure can void any criminal intention and dismiss the charges. An expert witness can examine the gun, which can prove a faulty gun, or a medical expert can testify that you had no control of your body when the shot was fired.
3. Self-defense: Shooting in self-defense can be a strong defense if you believed that there was imminent danger and you acted to stop the danger using force in a reasonable manner. Surveillance footage may aid in proving that you acted reasonably in this circumstance.

IMMIGRATION CONSEQUENCES

If you are not a U.S. citizen and are charged with a crime such as shooting from a motor vehicle, it could lead to deportation. It is crucial to seek advice from an attorney promptly to explore options for having the charges dismissed or reduced to an offense that does not carry the risk of deportation. If you do not have or know of an immigration lawyer, the Tabibnia Law Firm can refer you to one.

CAN A DEFENDANT GET A CONVICTION EXPUNGED?

If you are convicted of shooting from a motor vehicle, you may be eligible for an expungement if you:

• Successfully fulfill the terms of your probation, or
• Complete a relevant jail term.

Even if you violate a term of your probation, it is still possible to seek an expungement, albeit at the discretion of the judge.

According to Penal Code 1203.4, an expungement relieves you from “virtually all penalties and disabilities” associated with the conviction.

RELATED CRIMES

1. Shooting at an Inhabited Dwelling or Occupied Car – California Penal Code Section 246 PC
2. Shooting in a Grossly Negligent Manner – California Penal Code Section 246.3 PC
3. Assault with a Firearm – California Penal Code Section 245(a)(2) PC
4. Carrying a Loaded Firearm – California Penal Code Section 25850 PC

SPEAK WITH CRIMINAL DEFENSE LAWYER FROM TABIBNIA LAW FIRM

If you have been charged with a Penal Code Section 26100 violation, seeking the assistance of a Los Angeles criminal defense attorney is crucial to potentially reduce the severity of the sentence. Accusations involving discharging a weapon from a motor vehicle can result in grave consequences for those found guilty. A skilled attorney can provide valuable assistance in researching and applying appropriate defenses specific to your case. Additionally, a knowledgeable criminal defense attorney can help demonstrate that you did not possess the required intent for a conviction.

If you or someone you know is facing allegations related to a shooting from a motor vehicle, consider reaching out to Cyrus Tabibnia at Tabibnia Law Firm for assistance.