2576. Explosion of Explosive or Destructive Device With Intent to Murder
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.
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);
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, § 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.]
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.
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 (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].)
If the jury is not otherwise instructed on murder or attempted murder, give a modified version of CALCRIM No. 520, Murder With Malice Aforethought.
Elements. Pen. Code, § 12308.
Explosive Defined. Health & Saf. Code, § 12000.
Destructive Device Defined. Pen. Code, § 12301.
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[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].
Multiple Charges Based on Multiple Victims Appropriate
The defendant may be charged with multiple counts of violating Penal Code section 12308 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.
(New January 2006)