While some believe only the shooter is criminally liable in a drive-by shooting, that is far from the truth. Under California law, Penal Code section 26100 (PC) says if your vehicle was used for a drive-by shooting, but you were not present, you could be convicted if the prosecution can prove that you knew your car was going to be used for this crime. If you have been accused of violating 26100 (PC), call a San Diego criminal defense attorney as soon as possible.
California’s Drive-By Shooting Law
Drive-bys are illegal under California Penal Code section 26100 (PC). There are three different ways someone can be convicted of this crime:
- Someone allows another person to bring a firearm into their vehicle.
- A driver or vehicle owner knowingly permits someone to fire the weapon from the car.
- Someone willfully and maliciously discharges a gun from a motor vehicle at anyone outside the car.
How Much Prison Time for Drive-By Shooting
Penalties for drive-by shootings vary based on the specifics of the crime and what role each person played in the incident. Someone who knowingly allows another person to bring a firearm into their vehicle is guilty of a misdemeanor, punishable by up to six months in county jail and a fine of $1,000.
Being the driver or owner of a vehicle who knowingly lets someone fire a gun from a car will leave you facing “wobbler” charges, meaning you could face felony or misdemeanor charges. As a misdemeanor, this crime is punishable by up to one year in jail, but as a felony, the sentence can be as high as three years in prison and $10,000 in fines.
The person who will face the most severe penalties though, is the one who shot the gun. How much prison time someone gets for being the shooter varies based on whether anyone was injured. If you are convicted for your role as the shooter, you could face up to seven years in state prison if no one was injured. If someone was seriously injured though, you could be sent to jail for up to ten years, and if someone was killed, you could face murder charges and, thus, life imprisonment.
As a violent crime, anyone convicted of a felony under 26100 (PC) will also have a strike added to their record. Because this crime is a strikeable offense, those convicted of a felony must serve at least 85% of their sentence before becoming eligible for parole. Anyone who already has a strike on their record will automatically have their sentence doubled, and if they had two previous strikes, they will face life imprisonment. A skilled violent crimes defense lawyer in San Diego can sometimes convince a judge to strike a strike, so you will not have previous strikes count towards your sentencing for this offense.
Additional Charges for Drive-by Shootings
Those who commit these serious criminal acts are likely to face other charges and sentencing enhancements. The most common enhancements are those related to gang activities, charged under Penal Code section 186.22 (PC). Those convicted under this offense can face an additional 10 years in prison or 15 years if someone was seriously injured.
In some cases, these shootings are related to hate crimes. If prosecutors prove the shooting was a hate crime, a misdemeanor offense will be charged as a felony, and a felony offense will have an additional three years added to the prison sentence.
Additionally, a driver, passenger, or vehicle owner may be liable for the same punishment as the shooter if they aided and abetted in the crime, meaning they knew about and intended to assist in the crime.
Many people who are accused of being a driver or shooter in a drive-by will also face charges related to shooting at a dwelling or vehicle. California Penal Code section 246 (PC) is a law that covers shooting at an inhabited dwelling or occupied vehicle and is punishable by 7 years in prison. These charges commonly accompany drive-by charges, as the shooters in many of these crimes hit a building or car currently occupied by the intended victim. If the building or vehicle was unoccupied, the charge will be Penal Code 247(b) (PC), which can be charged as a felony or misdemeanor. As a felony, it carries sentences of up to 3 years in prison. In most cases, the driver and shooter will face the same charges under these laws.
With these types of serious charges and sentence enhancements, it is easy to see just how vital a criminal defense lawyer can be to your case.
Fighting Drive-By Shooting Charges Under 26100 (PC)
There are many legal defenses for these crimes, and your criminal defense lawyer can help you determine the best course of action for your specific case. In some situations, your best option might be to seek an agreeable plea bargain.
In other cases, your lawyer might be able to argue that there is not enough evidence to prove that you were in the car when the shooting occurred or had no knowledge that the shooting was to take place.
Some defendants accused of shooting a gun from a vehicle have been able to prove that they only shot at the alleged victims in self defense, after the other party pulled out firearms and aimed them at the defendant’s vehicle. Drive-by shootings often happen so fast that eyewitness reports are unreliable regarding who was involved or who started shooting first. With the right lawyers on your side, you may be able to show that the prosecution does not have enough proof to show you were involved with the shooting or that you did not act in self defense.
Protect Your Rights
The best thing you can do to fight the charges is to remain silent after you have been arrested. Remember that just getting caught carrying a loaded gun in the vicinity where someone was hit in a drive-by shooting is not enough to show you were responsible. While you could face firearms charges, the police want you to confess and will often say things that are not true to trick you into saying something that can be used against you.
If you have been arrested for participating in a drive-by shooting, please call attorney Peter M. Liss at (760) 643-4050.