California Criminal Jury Instructions (CALCRIM) (2017)

2570. Possession of Destructive Device

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E. EXPLOSIVES AND DESTRUCTIVE DEVICES
2570.Possession of Destructive Device (Pen. Code, § 18710)
The defendant is charged [in Count ] with unlawfully possessing
a destructive device [in violation of Penal Code section 18710].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a destructive device;
2. The defendant knew (he/she) possessed it;
AND
3. The defendant knew that what (he/she) possessed was a
destructive device.
[A destructive device is <insert definition from Pen. Code,
§ 16460>.]
[<insert type of destructive device from Pen. Code, § 16460>
is a destructive device.]
[The term destructive device is defined in another instruction.]
[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.]
[The People allege that the defendant possessed the following destructive
devices: <insert description of each destructive device when
multiple devices alleged>. You may not find the defendant guilty unless
all of you agree that the People have proved that the defendant
possessed at least one of the alleged devices, and you all agree on which
alleged device (he/she) possessed.]
<Defense: Permit>
[The defendant did not unlawfully possess a destructive device if (he/
she) had a valid permit to do so. The People have the burden of proving
beyond a reasonable doubt that the defendant did not have a valid
permit. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
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BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
If the prosecution alleges under a single count that the defendant possessed
multiple items, the court has a sua sponte duty to instruct on unanimity. (People v.
Heideman (1976) 58 Cal.App.3d 321, 333 [130 Cal.Rptr. 349].) Give the bracketed
paragraph that begins, “The People allege that the defendant possessed the
following destructive devices,” inserting the items alleged.
Give the bracketed definition of “destructive device,” inserting the appropriate
definition from Penal Code section 16460, unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere. If the case involves a specific
device listed in Penal Code section 16460, the court may instead give the bracketed
sentence stating that the listed item “is a destructive device.” For example, “A
grenade is a destructive device.” However, the court may not instruct the jury that
the defendant used a destructive device. For example, the court may not state that
“the defendant used a destructive device, a grenade,” or “the device used by the
defendant, a grenade, was a destructive device.” (People v. Dimitrov (1995) 33
Cal.App.4th 18, 25–26 [39 Cal.Rptr.2d 257].)
If the device used is a bomb, the court may insert the word “bomb” in the
bracketed definition of destructive device without further definition. (People v.
Dimitrov, supra, 33 Cal.App.4th at p. 25.) Appellate courts have held that the term
“bomb” is not vague and is understood in its “common, accepted, and popular
sense.” (People v. Quinn (1976) 57 Cal.App.3d 251, 258 [129 Cal.Rptr. 139];
People v. Dimitrov, supra, 33 Cal.App.4th at p. 25.) If the court wishes to define
the term “bomb,” the court may use the following definition: “A bomb is a device
carrying an explosive charge fused to blow up or detonate under certain
conditions.” (See People v. Morse (1992) 2 Cal.App.4th 620, 647, fn. 8 [3
Cal.Rptr.2d 343].)
Defenses—Instructional Duty
Penal Code section 18900 allows for the possession of a destructive device with a
permit. The existence of a valid permit is an affirmative defense. (People v.
Yoshimura (1979) 91 Cal.App.3d 609, 627–629 [154 Cal.Rptr. 314].) The defendant
bears the burden of producing evidence of a valid permit. If there is sufficient
evidence to raise a reasonable doubt about the existence of a permit, the court has
asua sponte duty to give the bracketed instruction on the defense. (See People v.
Mower (2002) 28 Cal.4th 457, 478–481 [122 Cal.Rptr.2d 326, 49 P.3d 1067]
[discussing affirmative defenses generally and the burden of proof].)
AUTHORITY
• Elements. Pen. Code, § 18710.
Destructive Device Defined. Pen. Code, § 16460.
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• Permit Exemption. Pen. Code, § 18900; People v. Yoshimura (1979) 91
Cal.App.3d 609, 627–628 [154 Cal.Rptr. 314].
• Knowledge. See People v. Rubalcava (2000) 23 Cal.4th 322, 331–332 [96
Cal.Rptr.2d 735, 1 P.3d 52]; In re Jorge M. (2000) 23 Cal.4th 866, 887 [98
Cal.Rptr.2d 466, 4 P.3d 297]; People v. Yoshimura (1979) 91 Cal.App.3d 609,
629 [154 Cal.Rptr. 314].
• Constructive vs. Actual Possession. See People v. Azevedo (1984) 161
Cal.App.3d 235, 242–243 [207 Cal.Rptr. 270], questioned on other grounds in
In re Jorge M. (2000) 23 Cal.4th 866, 876, fn. 6 [98 Cal.Rptr.2d 466, 4 P.3d
297]; People v. Yoshimura (1979) 91 Cal.App.3d 609, 619 [154 Cal.Rptr. 314].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, §§ 168–169.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.01[1][c] (Matthew Bender).
RELATED ISSUES
Tracer Ammunition
Penal Code section 16460(a)(1) states that “destructive device” includes “that
which is commonly known as tracer or incendiary ammunition, except tracer
ammunition manufactured for use in shotguns.” In People v. Miller (1999) 69
Cal.App.4th 190, 213 [81 Cal.Rptr.2d 410], the court held that “proof of the
purpose for which tracer ammunition was manufactured is an affirmative defense to
the charge of possessing a destructive device, and not an element of the offense.”
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