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)