The court has a sua sponte duty to give this instruction deﬁning the elements of
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
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].)
• Elements. Pen. Code, § 18710.
•Destructive Device Deﬁned. Pen. Code, § 16460.
CALCRIM No. 2570 WEAPONS