California Criminal Jury Instructions (CALCRIM) (2017)

2575. Offer to Sell Destructive Device

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2575.Offer to Sell Destructive Device (Pen. Code, § 18730)
The defendant is charged [in Count ] with offering to sell a
destructive device [in violation of Penal Code section 18730].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant offered to sell a destructive device;
AND
2. The defendant intended to sell a destructive device.
[As used here, selling means exchanging something for money, services,
or anything of value.]
[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.]
<Defense: Statutory Exception>
[The defendant did not unlawfully offer to sell a destructive device if
(he/she) was legally authorized to do so. The People have the burden of
proving beyond a reasonable doubt that the defendant was not legally
authorized to offer to sell a destructive device. If the People have not
met this burden, you must find the defendant not guilty of this crime.]
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 used, give the bracketed definitions of “destructive
device,” inserting the appropriate description 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
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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 18730 allows for the sale, offer to sell, or transportation of a
destructive device “as provided by this chapter.” As with a permit for possession,
the existence of a legally valid basis for the defendant to offer to sell a destructive
device is an affirmative defense. (See People v. Yoshimura (1979) 91 Cal.App.3d
609, 627–629 [154 Cal.Rptr. 314].) If there is sufficient evidence to raise a
reasonable doubt about the existence of a legal basis for the defendant’s actions,
the court has a sua 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, § 18730.
Destructive Device Defined. Pen. Code, § 16460.
• Specific Intent Required for Offer to Sell. People v. Jackson (1963) 59 Cal.2d
468, 469–470 [30 Cal.Rptr. 329, 381 P.2d 1].
• Knowledge. See People v. Yoshimura (1979) 91 Cal.App.3d 609, 619 [154
Cal.Rptr. 314]; People v. Guy (1980) 107 Cal.App.3d 593, 601 [165 Cal.Rptr.
463].
• 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).
WEAPONS CALCRIM No. 2575
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LESSER INCLUDED OFFENSES
• Possession of Destructive Device. Pen. Code, § 18710; People v. Westoby
(1976) 63 Cal.App.3d 790, 795 [134 Cal.Rptr. 97].
CALCRIM No. 2575 WEAPONS
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