Bostick

I concur in the judgment because I agree it was proper to exclude evidence of the victim’s cocaine use and that Penal Code section 12022.55 1 is unamenable to judicial interpretation. I write separately, with respect to the latter issue, because I agree with appellant’s theory of the statute and believe it appropriate to explain why I nevertheless reject his argument.

*293 As appellant correctly points out, section 12022.55 was designed to increase the punishment for a so-called “drive-by” shooting—that is, the discharge of a weapon from a moving vehicle in an area in which large numbers of people are likely to be present—and this case arguably does not involve such a shooting.

Gang-related drive-by shootings had become a significant social problem in California in 1987—indeed, an “epidemic” 2 —when section 12022.55 was enacted, and the statute was undoubtedly addressed to this problem. As stated in People v. Williams (1993) 14 Cal.App.4th 601 [ 17 Cal.Rptr.2d 583 ], “[t]he evil addressed [by section 12022.55] is . . . the number of victims who suffer great bodily injury from such a so-called 'drive-by.' ” (Id., at p. 604, italics added.) The Attorney General has elsewhere also…

Timothy Neal Bostick was convicted by a jury of voluntary manslaughter, with a special finding that he discharged a firearm from a motor vehicle causing another’s death, within the meaning of Penal Code section 12022.55 (all further unspecified statutory references are to the Penal Code). Sentenced to a total term of 11 years in prison, Bostick seeks reversal on the grounds that the trial court prejudicially erred in excluding testimony regarding the victim’s use of cocaine and that the jury should have been instructed that the gun enhancement statute contains an implied “drive-by” element. We disagree on both counts and affirm the judgment.

Background

In 1987, Dena Wright (Dena) began a relationship with the victim in this case, Eric Riggins, when she was 14 years old. She moved in with Riggins and gave birth to a son, Jaray, in 1988. During their relationship there were incidents where Dena was subject to severe physical abuse by Riggins, some of which were reported to the police. Riggins would slap her and hit her. He broke her wrist when she was three months pregnant; when she was eight months pregnant he struck her, causing her to fall and hit her head on a…

[Opinion certified for partial publication. [*] ]

OPINION

SMITH, J.

Timothy Neal Bostick was convicted by a jury of voluntary manslaughter, with a special finding that he discharged a firearm from a motor vehicle causing another's death, within the meaning of Penal Code section 12022.55 (all further unspecified statutory references are to the Penal Code). Sentenced to a total term of 11 years in prison, Bostick seeks reversal on the grounds that the trial court prejudicially erred in excluding testimony regarding the victim's use of cocaine and that the jury should have been instructed that the gun enhancement statute contains an implied "drive-by" element. We disagree on both counts and affirm the judgment.

In 1987, Dena Wright (Dena) began a relationship with the victim in this case, Eric Riggins, when she was 14 years old. She moved in with Riggins and gave birth to a son, Jaray, in 1988. During their relationship there were incidents where Dena was subject to severe physical abuse by Riggins, some of which were reported to the police. Riggins would slap her and hit her. He broke her wrist when she was three months pregnant; when she was eight months pregnant he struck her,…