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  1. #1
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    Default When Does a Shooting Constitute a Drive-By Shooting

    My question involves criminal law for the state of: California

    Is it considered a Drive-By Shooting if the Defendant got out of the car before discharging the firearm?

  2. #2
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    Default Re: California Drive-by Shooting Enhancement/Charge

    Quote Quoting Solo95502
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    My question involves criminal law for the state of: California
    Is it considered a Drive-By Shooting if the Defendant got out of the car before discharging the firearm?
    Probably not. You need to discuss your case with your attorney.

    California Penal Code 26100 is technically known as "discharging a firearm from a motor vehicle." It has nothing really to do with "drive-by shooting", it is commonly referred to, however, as California's "drive-by shooting" law.

  3. #3
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    Default Re: California Drive-by Shooting Enhancement/Charge

    Quote Quoting Solo95502
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    My question involves criminal law for the state of: California
    Is it considered a Drive-By Shooting if the Defendant got out of the car before discharging the firearm?
    The serious offenses will be the same whether you are driving, walking, or riding a lawn mower. In most cases it will be ADW (assault with a deadly weapon - a firearm) or attempted murder. If someone dies, then it will likely be murder or manslaughter - depending on the facts and any plea deal. Driving does not make it any more or less serious ... though firing from a moving vehicle will likely have a serious effect on one's aim.

    PC 21600 is a wobbler, and is among the least serious of the offenses one might face in such a circumstance.
    **********
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  4. #4
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    Mar 2013
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    Default Re: When Does a Shooting Constitute a Drive-By Shooting

    Quote Quoting Solo95502
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    My question involves criminal law for the state of: California

    Is it considered a Drive-By Shooting if the Defendant got out of the car before discharging the firearm?
    No, it's a Get Out of the Car Shooting.

    SMH.

  5. #5
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    Default Re: When Does a Shooting Constitute a Drive-By Shooting

    I recall a few "walk by shootings" over the years as well. They are simply not quite as "street" as a drive by, I guess.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  6. #6
    Join Date
    Sep 2010
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    Default Re: When Does a Shooting Constitute a Drive-By Shooting

    26100 is a separate charge (as pointed out, pretty weak compared to the various assault charges that you could face if you actually try to shoot someone).

    But I think the original shooter (I mean poster) was talking about PC 12022.55 which is the sentencing enhancement for drive by.

    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

    Essentially there are enhancements to the felony sentencing, first in 12022.5 which increases things for firearms and assualt weapons and then the above section.

    Dug through the case law referencing this. As pointed out there is no "drive by" aspect to it. There's a case where this enhancement was upheld when one guy is talking to another through the car window for an extended period and the guy in the car shoots the guy outside the car. The statutory language is upheld as clear, the car doesn't need to be in motion.

    Note there's a case, interestingly enough, of someone shooting from one car to antoher. Note the statutory construction. The words "other than an occupant of a motor vehicle" applies to motor vehicles in general, not just the one from which the shot was fired.

    The decision on that interprets the statute of having the essence of mobility via the car. So if you come to a stop, open the door, step out and shoot, and get back in, they may likely interpret the statute as applying.

  7. #7
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    Default Re: When Does a Shooting Constitute a Drive-By Shooting

    True enough.

    From Calcrim:

    Discharge From a Vehicle—Vehicle Does Not Have to Be Moving
    Penal Code section 189 does not require the vehicle to be moving when the shots are fired. (Pen. Code, 189; see also People v. Bostick (1996) 46 Cal.App.4th 287, 291 [53 Cal.Rptr.2d 760] [finding vehicle movement is not required in context of enhancement for discharging firearm from motor vehicle under Pen. Code, 12022.55].)


    Though, such enhancements have (sadly - and, terrifyingly) been rendered largely moot by the electorate of CA last November.

    One reason that the enhancement is not always applied is the annoying element of intent. Depending on all the facts, it can be easier to pursue the matter with other offenses and enhancements without arguing specific intent.

    PC 12022.5 is the general enhancement for the use of a firearm without the specific intent ... though, it can only be used for offenses where a firearm is not an element of the firearm. AND, Prop 57 has also rendered this enhancement effectively moot in many circumstances.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

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