Skip to content
Name: People v. Gaines (2023) 93 Cal.App.5th 91 (and People v. Ross)
Case #: F083168, F083228
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 06/15/2023
Subsequent History: Ordered published 7/5/2023

The offenses of discharging a firearm from a vehicle, and permitting another person to discharge a firearm from a vehicle, do not require that the shooter be inside the vehicle at the time of the shooting. At a store, Gaines and Ross exchanged words with a man who was with his girlfriend and her children. After leaving the store, Gaines drove his vehicle in search of the man, who was walking on the sidewalk with his girlfriend and children. Gaines stopped the car while Ross got out and shot at the individuals. Defendants were convicted of numerous offenses including shooting from a vehicle (Ross) and permitting a person to shoot from a vehicle (Gaines) (Pen. Code, § 26100(c), (b)). Defendants challenged their section 26100 convictions because Ross did not shoot from inside the car. Held: Affirmed (but remanded for SB 567 resentencing). Section 26100(c) proscribes discharging a firearm “from a motor vehicle” at another person other than an occupant of the vehicle. Section 26100(b) makes it a crime for a driver or owner of a vehicle to knowingly permit another person to discharge any firearm “from the vehicle.” The definition of “from” in section 26100 is ambiguous. But in the context of the section’s legislative history, it implies a starting point of a motion, not a requirement as to the location from which the action occurs. This is clear from the purpose of the statute: to deter persons from violent actions upon public streets and highways. These goals are served by construing the statute to include a defendant who exits the car in order to shoot.

Defendant Gaines was properly convicted of both the underlying crimes and as an accessory to such crimes based upon his assisting Ross’s escape after the underlying crimes had ended. Gaines was convicted of attempted murder and assault as a principal, as well being an accessory after-the-fact to the same crimes. This was proper, as being a principal in a crime and being an accessory to that crime are not mutually exclusive offenses as a matter of law. An individual may simultaneously entertain multiple criminal objectives. Gaines was a principal in the assault and attempted murder when he drove Ross in search of the victims and remained with him as he shot at them. Gaines then drove Ross from the crime scene. Thus, Gaines’s convictions were based on factually separate acts and involved distinct criminal intents. Section 954 “reflects the Legislature’s approval of charging two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses under separate counts and convicting the defendant of any number of the offenses charged.”

Defendant Ross’s conviction for attempted murder is supported by sufficient evidence of intent to kill. On appeal, Ross argued there was no evidence the victims were “down range” when he shot towards them, and the trajectory of the bullets was eight to 10 feet in the air, indicating he intentionally shot over the heads of the victims and only intended to frighten them. Thus, he argued, there was no credible evidence of intent to kill. However, Ross fired 10 shots at the victims, who were five to 10 feet away. This provides substantial evidence from which the jury could reasonably infer he harbored the intent to kill. In addition, his conduct in pursuing the victims with a gun shows premeditation.

While nonverbal conduct alone is insufficient to constitute a criminal threat, a combination of words and gestures may be sufficient. Section 422 proscribes making a threat to commit a crime which will result in death or great bodily injury to another person, with the intent that the statement be taken as a threat, and which on its face and under the circumstances, conveys to the person threatened, a gravity of purpose and immediate prospect of execution of the threat, so as to place the person threatened in reasonable, sustained fear for his safety or the safety of his family. Prior to shooting at the victims, Ross said “F— you and your kids.” Ross’s statement, made at gunpoint, conveyed a “gravity of purpose and an immediate prospect of execution of the threat” that caused the victims to run away in fear, as required by section 422. In addition, the offense was properly proved with a prior inconsistent statement after one of the victims repudiated this extrajudicial statement.