California Penal Code §26100 — Drive-By Shooting
PC §26100 covers a range of drive-by shooting offenses. The most serious — §26100(c), willfully and maliciously discharging a firearm from a motor vehicle at another person other than an occupant — is a straight felony punishable by 3, 5, or 7 years in state prison and is a serious/violent felony strike under PC §1192.7 and §667.5(c). Subsection (d) covers discharge from a vehicle NOT at a person (6 months, 1, or 3 years); subsection (b) covers a driver knowingly permitting discharge; subsection (a) covers permitting a firearm to be brought into a vehicle.
Reviewed by Daniel S. Rubin, CA Bar 302093 · Los Angeles Criminal Defense Attorney · Drive-By Shooting Cases in All LA County Courts
01 — Quick Facts
PC §26100 — Drive-By Shooting at a Glance
| Fact | Detail |
|---|---|
| Full Name | California Penal Code §26100 — Discharge of Firearm from Motor Vehicle |
| Code Type | Penal Code (PC) |
| Classification | Felony (all subsections except §26100(a) misdemeanor) |
| §26100(c) Penalty | 3, 5, or 7 years state prison — STRIKE |
| §26100(d) Penalty | 6 months, 1 year, or 3 years county jail / prison |
| §26100(b) Penalty | 6 months, 1 year, or 3 years — driver permitting discharge |
| §26100(a) Penalty | Misdemeanor — permitting firearm in vehicle |
| Strike | YES for §26100(c) — serious/violent felony under §1192.7(c)(8) and §667.5(c)(8) |
| Gang Enhancement | Common under §186.22(b) — adds 2-4 years and makes offense a strike |
| Free Consultation | (213) 723-2337 — 24/7 |
01 — What Is PC §26100?
What Is California Penal Code §26100?
PC §26100 Reads:
"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 the state prison for three, five, or seven years."
— California Penal Code §26100(c)
PC §26100 criminalizes discharging or permitting the discharge of a firearm from a motor vehicle. The statute is tiered: (a) permitting a firearm to be brought into a vehicle is a misdemeanor; (b) a driver knowingly permitting discharge is a 6mo/1/3yr felony; (c) willful malicious discharge AT a person is a 3/5/7yr felony strike; (d) willful malicious discharge NOT at a person is a 6mo/1/3yr felony. The most-charged version in LA County gang cases is §26100(c).
§26100(c) vs. §187 Attempted Murder Charging
Prosecutors frequently charge §26100(c) alongside attempted murder (§664/§187) and assault with a firearm (§245(a)(2)) when a drive-by targets a person. §26100(c) carries its own strike consequence, and the firearm-discharge enhancement under PC §12022.53 can add 20 years to life on top.
PC §26100(c) — Discharge AT a Person
Willful and malicious discharge from a motor vehicle at another person (not an occupant). 3, 5, or 7 years state prison. Serious/violent felony strike.
PC §26100(d) — Discharge NOT AT a Person
Willful and malicious discharge from a motor vehicle, not directed at a person. 6 months, 1 year, or 3 years. Not a strike unless combined with §12022.53.
Why §26100(c) Cases Are Life-Altering
A §26100(c) conviction is a strike, triggers PC §12022.53 firearm enhancements (10/20/25-to-life for discharge causing GBI or death), and stacks with attempted murder (§664/§187), §245(a)(2), and gang enhancement (§186.22). LA gang cases routinely combine these to produce 30-year to life-plus exposure. Rubin Law, P.C. attacks identity, intent, gang-motive predicate, and the §12022.53 discharge/GBI findings.
Official Sources
02 — Elements of the Crime
Elements the Prosecution Must Prove Under PC §26100
To convict under PC §26100(c), the prosecution must prove each of the following elements beyond a reasonable doubt.
The Defendant Willfully Discharged a Firearm From a Motor Vehicle
The discharge must be from within the vehicle. 'Willfully' means intentionally — not accidentally. The People must prove identity of the shooter, not merely presence in the vehicle.
The Discharge Was Malicious
'Malicious' under PC §7(4) means a wish to vex, annoy, or injure another person, or an intent to do a wrongful act. Accidental discharge, warning shot into the air with no intent to harm, or defensive discharge under duress may negate malice.
The Firearm Was Directed at Another Person Other Than a Vehicle Occupant
The target must be a person outside the shooter's vehicle. Discharge at a vehicle (without proving discharge at an occupant) falls under §26100(d). Warning shots at the ground or air fall under §246.3 (grossly negligent discharge).
04 — Penalties
Penalties for PC §26100 Drive-By Shooting in California
PC §26100 has four subsections with dramatically different penalty ranges.
| Charge | Code | Prison Term | Probation | Strike |
|---|---|---|---|---|
| §26100(a) — Permit Firearm in Vehicle | PC §26100(a) | Misdemeanor — up to 1 year county jail | Available | No |
| §26100(b) — Driver Permits Discharge | PC §26100(b) | 6 months, 1 year, or 3 years | Available | No (unless §12022.53) |
| §26100(c) — Discharge AT Person | PC §26100(c) | 3, 5, or 7 years state prison | Rare — presumptive prison | YES — serious/violent felony |
| §26100(d) — Discharge NOT AT Person | PC §26100(d) | 6 months, 1 year, or 3 years | Available | No |
| Attempted Murder Concurrent | PC §664/§187 | 5, 7, or 9 years (or life if premeditated) | No | Yes |
Enhancements That Increase §26100 Exposure Dramatically
PC §12022.53(b) — Discharge of Firearm
PC §12022.53(b)
Adds 10 years consecutive when firearm is used in commission of §26100.
PC §12022.53(c) — Firearm Discharge
PC §12022.53(c)
Adds 20 years consecutive when firearm is intentionally discharged.
PC §12022.53(d) — GBI or Death From Discharge
PC §12022.53(d)
Adds 25 years to life consecutive when discharge causes GBI or death.
Gang Enhancement
PC §186.22(b)(1)
Adds 10 years for serious felony §26100(c) committed for gang benefit.
Prior Serious/Violent Felony
PC §667(a)
Adds 5 years consecutive for each qualifying prior.
Second Strike
PC §667(e)(1)
Doubles the term when defendant has one prior strike.
Beyond the Sentence
- Strike under Three Strikes law (§26100(c) only)
- Lifetime firearm prohibition — state and federal
- Mandatory deportation for non-citizens — aggravated felony
- State prison — not eligible for county jail under §1170(h)
- 85% actual-time custody requirement under §2933.1 (violent felony)
- Gang registration under §186.30 if gang enhancement attaches
- Loss of professional licenses and public housing eligibility
Sentencing References
05 — Defense Strategies
How Rubin Law Defends PC §26100 Drive-By Shooting Charges
§26100(c) cases turn on identity, intent, and ballistics. Rubin Law, P.C. attacks each.
Mistaken Identity
Drive-by cases hinge on identification. Cross-race ID, distance, lighting, and stress all reduce reliability. Neufeld/Innocence Project studies show eyewitness ID is the leading cause of wrongful convictions.
People v. McDonald
No Willful Malicious Intent
Accidental discharge, defensive discharge under duress, or warning shot with no intent to harm negates the malicious element. §246.3 grossly negligent discharge is a lesser included.
PC §7(4) / §246.3
Not Discharged AT a Person
Ballistics reconstruction — trajectory analysis showing discharge was aimed at property, in the air, or accidental. Reduces §26100(c) to §26100(d) or §246.3.
PC §26100(d)
Passenger — Not Shooter
Mere presence in the vehicle is insufficient. The People must prove identity of the actual shooter. GSR testing, DNA, prints, and video review are critical.
People v. Sifuentes
Fourth Amendment Suppression
Warrantless vehicle searches, stop-based-on-tip challenges, and cellphone/GPS suppression under Carpenter v. United States (2018).
PC §1538.5
Gang Enhancement Challenge
People v. Sanchez (2016) hearsay challenge to gang expert testimony; STEP Act reform under AB 333 (2022) narrows §186.22 enhancement.
People v. Sanchez / AB 333
§12022.53 Strike Motion
PC §12022.53(h) allows the court to strike firearm enhancements in the interest of justice — critical mitigation lever added by SB 620 (2017).
PC §12022.53(h)
Constitutional Sources
07 — Court Process
How PC §26100 Drive-By Shooting Cases Move Through Los Angeles Courts
§26100(c) cases follow the serious/violent felony track with heightened bail and motion practice.
- 1
Step 1 — Investigation & Identification
Detectives build the case via witness ID, gang database, video surveillance, ShotSpotter, and cellphone location data. Early defense involvement is critical.
- 2
Step 2 — Arrest & Arraignment
Bail typically $1M-$5M for §26100(c) with §12022.53 enhancements. No-bail holds common when strike enhancements attach.
- 3
Step 3 — Preliminary Hearing
The People must show probable cause. Identity, intent, and gang predicate are the primary battlegrounds. Cross-examination of eyewitnesses and gang expert is critical.
- 4
Step 4 — Motion Practice
PC §1538.5 (suppression), §995 (dismissal), Pitchess (officer records), People v. Sanchez (gang expert), and AB 333 STEP Act motions.
- 5
Step 5 — Trial or Plea
Full trial common due to strike consequence. When plea, negotiation focuses on striking §12022.53 enhancement under PC §12022.53(h) and gang enhancement.
- 6
Step 6 — Sentencing
State prison. Court has SB 620 discretion to strike firearm enhancements. Youth Offender consideration under PC §3051 for defendants under 26.
Los Angeles Courts That Handle PC §26100 Drive-By Shooting Cases
§26100 cases are prosecuted at LA County felony courthouses with gang unit assignments.
Clara Shortridge Foltz Criminal Justice Center
Central LA — Hardcore Gang Division prosecutes most §26100(c) cases.
Compton Courthouse
South LA gang-crime calendar.
Long Beach Courthouse
South Bay gang-crime cases.
Norwalk Courthouse
Southeast LA gang-crime cases.
Pomona Courthouse
Eastern LA County gang-crime cases.
Reviewed by Your Attorney
Daniel S. Rubin — Los Angeles Drive-By Shooting Defense Attorney
Daniel S. Rubin has defended clients charged with drive-by shooting and related offenses in Los Angeles County courts — including Clara Shortridge Foltz, Van Nuys, Compton, and Pomona. He understands that these cases are won in the details: the suppression hearing that eliminates key evidence, the preliminary hearing cross-examination that exposes a weak witness, the penalty phase argument that keeps a client out of the worst outcome.
This page was written and reviewed by Daniel A. Rubin, Los Angeles criminal defense attorney, CA State Bar 302093, with 10+ years of experience defending clients charged under PC §26100 in Los Angeles County. Last reviewed: July 2026.
CA Bar 302093 | Whittier Law School | Rising Star — Super Lawyers 2019–2023 | Drive-By Shooting Cases Throughout LA County
09 — FAQs
PC §26100 Drive-By Shooting Questions — Los Angeles
What is the difference between §26100(c) and §26100(d)?
§26100(c) requires willful malicious discharge AT another person other than a vehicle occupant — 3/5/7 years and a strike. §26100(d) covers willful malicious discharge from a vehicle NOT directed at a person — 6mo/1/3 years and NOT a strike. The difference turns entirely on target — ballistics reconstruction is the primary defense tool.
Is PC §26100(c) a strike offense?
Yes. §26100(c) is a serious felony under PC §1192.7(c)(8) (any felony in which the defendant personally uses a firearm) and a violent felony under §667.5(c)(8). A conviction counts as a strike prior in any future case and triggers 85%-time custody under §2933.1 and consecutive-sentencing rules under §1170.1.
What is PC §12022.53 and how does it affect §26100 cases?
PC §12022.53 is the '10-20-life' firearm enhancement. Attached to §26100(c): 10 years for firearm use (§12022.53(b)), 20 years for intentional discharge (§12022.53(c)), or 25-to-life for discharge causing GBI/death (§12022.53(d)). Under SB 620 (2017), the court has discretion to strike these enhancements under §12022.53(h) — a critical mitigation lever.
What is the AB 333 STEP Act reform?
AB 333 (effective January 1, 2022) narrowed the §186.22 gang enhancement. It now requires proof of a 'pattern of criminal gang activity' committed by two or more members (not the current offense), a shared common benefit that is more than reputational, and enumerated predicate offenses. Existing convictions may be retroactively challenged via habeas or PC §1170.95.
Can I be convicted of §26100(c) if I was only the driver?
Only under aider-and-abettor liability (§31). The driver must knowingly assist the shooter with intent to encourage or facilitate the discharge. Mere presence — even knowledge of a passenger's firearm — is insufficient. People v. Beeman (1984) controls: the driver must share the specific intent to promote the discharge.
Can §26100(c) be reduced or dismissed?
It cannot be reduced under PC §17(b) — §26100(c) is a straight felony, not a wobbler. Dismissal comes via §995 (insufficient probable cause), suppression of critical evidence, striking §12022.53 or gang enhancements to reduce exposure, or negotiating a plea to §26100(d) or §246.3 (grossly negligent discharge). Trial is common due to the strike consequence.
Does §26100(c) trigger federal prosecution?
Sometimes. When the drive-by involves narcotics trafficking, RICO conduct, or crosses state lines, federal prosecutors may file under 18 USC §924(c) (firearm use in a violent crime — 10-year mandatory consecutive) or under Hobbs Act / VICAR statutes. Federal exposure often exceeds state — Rubin Law, P.C. actively manages state-federal case interaction.
How does §26100 differ from §246?
PC §246 covers shooting at an inhabited dwelling, occupied vehicle, or building — not requiring discharge from a vehicle. §26100 requires discharge FROM a motor vehicle. They are frequently charged together when a drive-by targets an occupied house or car. §246 carries 3/5/7 years and is also a strike.
Available 24/7 — Free Consultation
Charged Under PC §26100 Drive-By Shooting?
Identity, intent, ballistics, and §12022.53 firearm-enhancement exposure decide these cases. Every day matters. Call Rubin Law, P.C. — free consult (213) 723-2337.