California Criminal Jury Instructions (CALCRIM) (2017)

2577. Explosion of Explosive or Destructive Device Causing Bodily Injury

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2577.Explosion of Explosive or Destructive Device Causing
Bodily Injury (Pen. Code, § 18750)
The defendant is charged [in Count ] with (exploding/ [or]
igniting) (an explosive/ [or] a destructive device) causing bodily injury
to another person [in violation of Penal Code section 18750].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully and maliciously (exploded/ [or] ignited)
(an explosive/ [or] a destructive device);
AND
2. The explosion caused bodily injury to another person.
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
Someone acts maliciously when he or she intentionally does a wrongful
act or when he or she acts with the unlawful intent to annoy or injure
someone else.
[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.]
[An act causes bodily injury if the injury is the direct, natural, and
probable consequence of the act, and the injury would not have
happened without the act. A natural and probable consequence is one
that a reasonable person would know is likely to happen if nothing
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unusual intervenes. In deciding whether a consequence is natural and
probable, consider all of the circumstances established by the evidence.]
[There may be more than one cause of bodily injury. An act causes
bodily injury only if it is a substantial factor in causing the injury. A
substantial factor is more than a trivial or remote factor. However, it
need not be the only factor that causes the injury.]
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 causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (See People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401] [causation issue in homicide].) If the evidence indicates that there was only
one cause of injury, the court should give the “direct, natural, and probable”
language in the first bracketed paragraph on causation. If there is evidence of
multiple causes of injury, the court should also give the “substantial factor”
instruction and definition in the second bracketed paragraph. (See People v. Autry
(1995) 37 Cal.App.4th 351, 363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197
Cal.App.3d 732, 746–747 [243 Cal.Rptr. 54].)
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
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conditions.” (See People v. Morse (1992) 2 Cal.App.4th 620, 647, fn. 8 [3
Cal.Rptr.2d 343].)
AUTHORITY
• Elements. Pen. Code, § 18750.
Explosive Defined. Health & Saf. Code, § 12000.
• Destructive Device Defined. Pen. Code, § 16460.
• Maliciously Defined. Pen. Code, § 7(4); People v. Lopez (1986) 176
Cal.App.3d 545, 550 [222 Cal.Rptr. 101]; see also People v. Heideman (1976)
58 Cal.App.3d 321, 335 [130 Cal.Rptr. 349].
• Must Injure Another Person. People v. Teroganesian (1995) 31 Cal.App.4th
1534, 1538 [37 Cal.Rptr.2d 489].
• General Intent Crime. See People v. Thompson (1992) 7 Cal.App.4th 1966,
1970–1971 [10 Cal.Rptr.2d 15].
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. 140,
Challenges to Crimes, § 140.04, Ch. 144, Crimes Against Order, § 144.01[1][e]
(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
Maliciously—People v. Heideman
In People v. Heideman (1976) 58 Cal.App.3d 321 [130 Cal.Rptr. 349], the
defendant offered to commit murder for hire using explosives and possessed the
explosives. (Id. at pp. 327–329.) The defendant asserted that he did not actually
intend to physically injure anyone but simply to defraud the individuals offering to
pay for the murders. (Id. at pp. 330–331.) On appeal, the defendant contended that
the court had improperly instructed on the meaning of “recklessness,” which the
prosecution conceded. (Id. at p. 334.) Noting that the “[d]efendant admitted that his
purpose in storing the dynamite in his room was to carry out a nefarious scheme to
defraud his victims,” the court found sufficient evidence to establish malice. (Id. at
p. 335.) The court stated that under the facts of the case before it, the term
“maliciously” did not “require an actual intent to physically injure, intimidate or
terrify others.” (Ibid.) Accordingly, the court found that the error in the instruction
on “recklessness” was harmless given that there was sufficient evidence to support
the higher culpability standard of malice. (Ibid.) The committee did not incorporate
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the language from Heideman in the definition of “maliciously” in this instruction
because the committee concluded that this case reflects unique facts and that the
language quoted is dicta, not essential to the ruling of the case.
See the Related Issues section to CALCRIM No. 2571, Carrying or Placing
Explosive or Destructive Device on Common Carrier.
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