2573. Possession, Explosion, etc., of Explosive or Destructive Device With Intent to Injure or Damage
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).
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);
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, § 12301>.]
[ <insert type of destructive device from Pen. Code, § 12301> 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] 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)).]
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 12301, 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 12301, 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 "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].)
Elements. Pen. Code, § 12303.3.
Explosive Defined. Health & Saf. Code, § 12000.
Destructive Device Defined. Pen. Code, § 12301.
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].
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[a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.01[c] (Matthew Bender).
Lesser Included Offenses
Possession of Destructive Device. Pen. Code, § 12303; 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].
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.
(New January 2006)