California Criminal Jury Instructions (CALCRIM) (2017)

2576. Explosion of Explosive or Destructive Device With Intent to Murder

Download PDF
2576.Explosion of Explosive or Destructive Device With Intent to
Murder (Pen. Code, § 18745)
The defendant is charged [in Count ] with (exploding/ [or]
igniting/ [or] attempting to (explode/ [or] ignite)) (an explosive/ [or] a
destructive device) with intent to commit murder [in violation of Penal
Code section 18745].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (exploded/ [or] ignited/ [or] attempted to (explode/
[or] ignite)) (an explosive/ [or] a destructive device);
AND
2. When the defendant did so, (he/she) acted with the intent to
murder someone.
[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.]
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 that the defendant attempted to explode or ignite the
item, the court must also give CALCRIM No. 460, Attempt Other Than Attempted
Murder.
447
0111
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
“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].)
Related Instructions
If the jury is not otherwise instructed on murder or attempted murder, give a
modified version of CALCRIM No. 520, Murder With Malice Aforethought.
AUTHORITY
• Elements. Pen. Code, § 18745.
Explosive Defined. Health & Saf. Code, § 12000.
• Destructive Device Defined. Pen. Code, § 16460.
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; 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].
CALCRIM No. 2576 WEAPONS
448
0112
RELATED ISSUES
Multiple Charges Based on Multiple Victims Appropriate
The defendant may be charged with multiple counts of violating Penal Code
section 18745 based on multiple victims, even if he or she used only one explosive
device. (People v. Ramirez (1992) 6 Cal.App.4th 1762, 1766–1767 [8 Cal.Rptr.2d
624].)
See the Related Issues section to CALCRIM No. 2571, Carrying or Placing
Explosive or Destructive Device on Common Carrier.
WEAPONS CALCRIM No. 2576
449
0113