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F 8.25.1 n1 Drive-by Murder: CJ 8.25.1 Relates To PC 189 Only.
CJ 8.25.1 relates to first degree drive-by murder under PC 189. For second degree drive-by murder under PC 190(d) [formerly PC 190(c)] see FORECITE F 8.30 n3.
F 8.25.1 n2 Drive-By Murder: Not A Form Of Felony Murder (PC 189).
Effective 1/1/94, PC 189 was revised to make shooting from a motor vehicle with intent to kill first degree murder. However, this statute does not add “drive-by murder” as a form of felony murder.
Felony murder applies to killings which occur “in the perpetration of or attempt to perpetrate” certain specified felonies.
Drive-by murder is different in that (1) it is not included in the list of felonies to which felony murder is applicable — it is a separate clause; (2) it is defined by language different than the felony murder language; “murder which is perpetrated by means of …”; and (3) unlike felony murder, drive-by murder requires the equivalent of express malice: “with intent to inflict death.” In light of the above, as with other theories of first degree murder under PC 189, the DA must first prove that the killing was murder independent of PC 189 — only after a murder is proven can the jury consider whether it is first degree murder by virtue of PC 189. (People v. Mattison (71) 4 C3d 177, 183-84 [93 CR 185]; People v. Diaz (92) 3 C4th 495, 538 [11 CR2d 353].)
Because drive-by murder is not an enumerated felony for the purposes of the felony murder rule, specific intent to kill (i.e., express malice) is an element of the charge. However, premeditation and deliberation need not be proven for first degree murder liability.
(See FORECITE F 8.25.1 n3.)
NOTE: The so-called “drive-by shooting” statute has no requirement that the car be moving before, during or after the shooting. Hence, it may be applied to any shooting, even from a car if it is parked.
F 8.25.1 n3 Drive-By Murder: By Failing To Define Premeditation And Deliberation, CJ 8.25.1 Improperly Directs Verdict On First Degree Murder.
See Brief Bank # B-880 for briefing on this issue.
*Add the following to CJ 8.25.1:
To return a verdict of first-degree murder based upon discharging a firearm from a vehicle, the prosecution must prove all of the following beyond a reasonable doubt:
1. The defendant is guilty of murder as defined elsewhere in these instructions; and
2. The killing was committed by means of discharging a firearm from inside a motor vehicle; and
3. The perpetrator intended to discharge the firearm at another person outside of the vehicle; and
4. The perpetrator intended to inflict death.
Points and Authorities
CJ 8.25.1 fails to enumerate the elements of drive-by murder per PC 189. (Compare CJ 8.24 re: torture.)