California Criminal Jury Instructions (CALCRIM) (2017)

2573. Possession, Explosion, etc., of Explosive or Destructive Device With Intent to Injure or Damage

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2573.Possession, Explosion, etc., of Explosive or Destructive
Device With Intent to Injure or Damage (Pen. Code, § 18740)
The defendant is charged [in Count ] with (possessing/ [or]
exploding/ [or] igniting/ [or] attempting to (explode/ [or] ignite)) (an
explosive/ [or] a destructive device) with intent (to injure, intimidate, or
terrify another person/ [or] to wrongfully damage or destroy someone
else’s property) [in violation of Penal Code section 18740].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (possessed/ [or] exploded/ [or] ignited/ [or]
attempted to (explode/ [or] ignite)) (an explosive/ [or] a
destructive device);
AND
2. At the time the defendant acted, (he/she) intended (to injure,
intimidate, or terrify another person/ [or] to wrongfully damage
or destroy someone else’s property).
[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
release gas and heat rapidly or relatively instantaneously.]
[<insert type of explosive from Health & Saf. Code, § 12000>
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.]
[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/ [or] exploded/ [or]
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ignited/ [or] attempted to (explode/ [or] ignite)) the following
(explosive[s]/ [or] destructive device[s]): <insert description
of each explosive or destructive device when multiple items alleged>. You
may not find the defendant guilty unless all of you agree that the People
have proved that the defendant (possessed/ [or] exploded/ [or] ignited/
[or] attempted to (explode/ [or] ignite)) at least one of the alleged items,
and you all agree on which alleged item (he/she) (possessed/ [or]
exploded/ [or] ignited/ [or] attempted to (explode/ [or] ignite)).]
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.
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,” inserting the items alleged. The jury also does not have to agree on
whether the item was an explosive or a destructive device. (People v. Westoby
(1976) 63 Cal.App.3d 790, 797 [134 Cal.Rptr. 97]; see also People v. Quinn,
(1976) 57 Cal.App.3d 251, 257 [129 Cal.Rptr. 139] [a bomb may be an explosive
and may be a destructive device].)
If the prosecution alleges that the defendant attempted to explode or ignite the
item, the court must also give CALCRIM No. 460, Attempt Other Than Attempted
Murder.
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].)
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
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“bomb” is not vague and is understood in its “common, accepted, and popular
sense.” (People v. Quinn, supra, 57 Cal.App.3d at p. 258; 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, § 18740.
Explosive Defined. Health & Saf. Code, § 12000.
• Destructive Device Defined. Pen. Code, § 16460.
• Must Intend to Harm Another Person. People v. Godwin (1995) 31
Cal.App.4th 1112, 1118 [37 Cal.Rptr.2d 708].
• 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].
• Unanimity. People v. Heideman (1976) 58 Cal.App.3d 321, 333 [130 Cal.Rptr.
349].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, §§ 168–169.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
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; People v. Westoby
(1976) 63 Cal.App.3d 790, 795 [134 Cal.Rptr. 97].
• Possession of Explosive. Health & Saf. Code, § 12305; People v. Westoby
(1976) 63 Cal.App.3d 790, 795 [134 Cal.Rptr. 97].
RELATED ISSUES
See the Related Issues section to CALCRIM No. 2571, Carrying or Placing
Explosive or Destructive Device on Common Carrier, and CALCRIM No. 2572,
Possession of Explosive or Destructive Device in Specified Place.
CALCRIM No. 2573 WEAPONS
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