California Criminal Jury Instructions (CALCRIM) (2017)

2571. Carrying or Placing Explosive or Destructive Device on Common Carrier

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2571.Carrying or Placing Explosive or Destructive Device on
Common Carrier (Pen. Code, § 18725)
The defendant is charged [in Count ] with (carrying/ [or]
placing) (an explosive/ [or] a destructive device) on (a/an) (common
carrier/boat/plane/car/bus/ /<insert type of
other vehicle>) that transports paying passengers [in violation of Penal
Code section 18725].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative 1A—carried or placed on common carrier>
[1. The defendant willfully (carried/ [or] placed) (an explosive/ [or] a
destructive device) on (a/an) (common carrier/boat/plane/car/bus/
<insert type of other vehicle>) that transports paying
passengers;]
<Alternative 1B—carried or placed in baggage while on common
carrier>
[1. The defendant willfully (carried/ [or] placed) (an explosive/ [or] a
destructive device) in (hand baggage[,]/ a roll[,]/ (or another/a)
container) while on board (a/an) (common carrier/boat/plane/car/
bus/ <insert type of other vehicle>) that transports
paying passengers;]
<Alternative 1C—placed in baggage to be checked on common carrier>
[1. The defendant willfully placed (an explosive/ [or] a destructive
device) in baggage that was later checked with a common
carrier;]
AND
2. The defendant knew that the object that (he/she) (carried/ [or]
placed) was (an explosive/ [or] a destructive device).
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[An explosive is any substance, or combination of substances, (1) whose
main or common purpose is to detonate or rapidly combust and (2)
which is capable of a relatively instantaneous or rapid release of gas
and heat.]
[An explosive is also any substance whose main purpose is to be
combined with other substances to create a new substance that can
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release gas and heat rapidly or relatively instantaneously.]
[<insert type of explosive from Health & Saf. Code, § 16460>
is an explosive.]
[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[s] (explosive/ [and] destructive device) (is/are) defined in
another instruction.]
[A common carrier is a person or business that publicly offers to carry
persons, property, or messages. [A person or business that publicly
offers to carry only telegraphic messages is not a common carrier.]]
[<insert type or name of common carrier> is a common
carrier.]
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
Depending on the device or substance used, give the bracketed definitions of
“explosive” or “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 Health
and Safety Code section 12000 or Penal Code section 16460, the court may instead
give the bracketed sentence stating that the listed item “is an explosive” or “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].)
Similarly, in the definition of “common carrier,” the court may instruct generally
that a type of vehicle is a common carrier. For example, “a Greyhound bus is a
common carrier.” The court may not instruct that the particular vehicle in the case
was a common carrier. For example, the court may not instruct that “the defendant
was on a common carrier, a Greyhound bus,” or “the vehicle in this case, a
Greyhound bus, is a common carrier.”
If the device used is a bomb, the court may insert the word “bomb” in the
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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].)
AUTHORITY
• Elements. Pen. Code, § 18725.
Explosive Defined. Health & Saf. Code, § 12000.
• Destructive Device Defined. Pen. Code, § 16460.
• 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,
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).
LESSER INCLUDED OFFENSES
• Possession of Destructive Device. Pen. Code, § 18710.
RELATED ISSUES
Gasoline Not an Explosive
“Under the statutory definition of explosive, the nature of the substance, not the
manner in which a substance is used, is determinative.” (People v. Clark (1990) 50
Cal.3d 583, 604 [268 Cal.Rptr. 399, 789 P.2d 127] [gasoline, by its nature, not an
explosive even where used to ignite a fire].)
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