Drive by Shooting Cases in California
People v. Vang (2001) 87 Cal.App.4th 554, is the seminal case involving a drive-by shooting which targets an occupied residence.
The defendants there were convicted on murder and multiple attempted murder counts after carrying out drive-by shootings at two residences.
On appeal, the defendants argued the attempted murder evidence was deficient because it failed to prove they intended to kill any of the inhabitants other than two individuals they had been specifically targeting.
The trial court rejected this claim, finding "the jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up. . . . Stated briefly, section 188 provides that malice aforethought 'is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.' In this case, defendants manifested a deliberate intention to unlawfully take the lives of others when they fired high-powered, wall-piercing, firearms at inhabited dwellings. The fact they could not see all of their victims did not somehow negate their express malice or intent to kill as to those victims who were present and in harm's way, but fortuitously were not killed." (Id. at pp. 563-564, fn. omitted.)
In People v. McCloud (2012) 211 Cal.App.4th 788, the defendants fired 10 bullets from a semiautomatic handgun, shooting from a parking lot into a Masonic Lodge where a party was going on.
The defendants killed two victims and wounded a third. They were convicted on two counts of second degree murder and 46 counts of either attempted murder (one defendant) or assault with a firearm (the other defendant). McCloud held this result could not be justified by the kill zone theory:
"In order for the kill zone theory to support 46 attempted murder convictions in the manner suggested by respondent, the record would have to contain evidence that Stringer and McCloud tried to kill the person who punched Stringer by killing all 46 people in the area where Stringer's assailant was located. But the record contains no evidence that Stringer or McCloud intended to kill 46 people with 10 bullets. Nor does the record contain evidence that it would have been possible for them to kill 46 people with 10 bullets (given the type of ammunition and firearm they used), or that they believed or had reason to believe it was possible. On the contrary, the evidence tended to show that it was not possible -- of the three bullets that struck Moses, Taylor, and Gaines, all three lodged in their bodies rather than exiting. . . . There is no evidence that Stringer and McCloud 'specifically intended to kill two or more persons with a single shot' , much less that they specifically intended to kill the 4.6 people per shot that would be necessary to support respondent's application of the kill zone theory." (Id. at pp. 799-800.)