Criminal Law

1550. Possession of Incendiary Device

The defendant is charged [in Count ______] with possessing an incendiary device or flammable material.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant (possessed/made/manufactured/disposed of) flammable or combustible material or an incendiary device in an arrangement or preparation;

AND

2. The defendant willfully and maliciously intended to use the material or device to set fire to or burn (a structure/ forest land/property).

Someone commits an act willfully when he or she does it willingly or on purpose.

Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to defraud, annoy, or injure someone else.

Incendiary device means a device constructed or designed to start an incendiary fire by instant, remote or delayed means. [It is not a device commercially manufactured primarily for illumination.]

Incendiary fire means a fire deliberately ignited under circumstances in which a person knows that the fire should not be ignited.

[Dispose of means to give, give away, offer, offer for sale, sell, transfer, or loan.]

[A structure means any (building/bridge/tunnel/power plant/ commercial or public tent).]

[Forest land means any brush-covered land, cut-over land, forest, grasslands, or woods.]

[Property means personal property or land other than forest land.]

[Two or more people may possess something at the same time.]

[A person does not have to actually hold or touch something, to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime.

Authority

Elements. Pen. Code, § 453.

Structure and Forest Land Defined. Pen. Code, § 450.

Manufacture Defined. People v. Combs (1985) 165 Cal.App.3d 422, 427 [211 Cal.Rptr. 617].

Includes Intent to Damage Own Property. People v. Morse (2004) 116 Cal.App.4th 1160, 1166 [11 Cal.Rptr.3d 9].

Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552, 556 [67 Cal.Rptr.2d 162].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 238-242.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.11 (Matthew Bender).

(New January 2006)