California Criminal Jury Instructions (CALCRIM) (2017)

2578. Explosion of Explosive or Destructive Device Causing Death, Mayhem, or Great Bodily Injury

Download PDF
2578.Explosion of Explosive or Destructive Device Causing
Death, Mayhem, or Great Bodily Injury (Pen. Code, § 18755)
The defendant is charged [in Count ] with (exploding/ [or]
igniting) (an explosive/ [or] a destructive device) causing (death[,]/
mayhem[,]/ [or] great bodily injury) to another person [in violation of
Penal Code section 18755].
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 (death[,]/ mayhem[,]/ [or] great 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.
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[Mayhem means unlawfully:
2. <A. Removing Body Part>
2. [Removing a part of someone’s body](;[ or]/.)
2. <B. Disabling Body Part>
2. [Disabling or making useless a part of someone’s body and the
disability is more than slight or temporary](;[ or]/.)
2. <C. Disfigurement>
2. [Permanently disfiguring someone](;[ or]/.)
2. <D. Tongue Injury>
2. [Cutting or disabling someone’s tongue](;[ or]/.)
2. <E. Slitting Nose, Ear, or Lip>
2. [Slitting someone’s (nose[,]/ear[,]/ [or] lip)](; or/.)
2. <F. Significant Eye Injury>
454
0118
2. [Putting out someone’s eye or injuring someone’s eye in a way
that so significantly reduces his or her ability to see that the eye
is useless for the purpose of ordinary sight.]]
[A disfiguring injury may be permanent even though it can be repaired
by medical procedures.]
[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 (death[,]/ mayhem[,]/ [or] great bodily injury) if the
(death/injury) is the direct, natural, and probable consequence of the
act, and the (death[,]/ mayhem[,]/ [or] great bodily 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
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 (death[,]/ mayhem[,]/ [or] great
bodily injury). An act causes (death/injury) only if it is a substantial
factor in causing the (death/injury). A substantial factor is more than a
trivial or remote factor. However, it need not be the only factor that
causes the (death/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
WEAPONS CALCRIM No. 2578
455
0119
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
conditions.” (See People v. Morse (1992) 2 Cal.App.4th 620, 647, fn. 8 [3
Cal.Rptr.2d 343].)
AUTHORITY
• Elements. Pen. Code, § 18755.
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. See 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].
CALCRIM No. 2578 WEAPONS
456
0120
• Great Bodily Injury Defined. People v. Poulin (1972) 27 Cal.App.3d 54, 61
[103 Cal.Rptr. 623].
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. 142, Crimes Against the Person,
§ 142.01[2][a][i], [ii], 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].
• Explosion of a Destructive Device Causing Injury. Pen. Code, § 18750; see
People v. Poulin (1972) 27 Cal.App.3d 54, 60 [103 Cal.Rptr. 623].
RELATED ISSUES
See the Related Issues section to CALCRIM No. 2571, Carrying or Placing
Explosive or Destructive Device on Common Carrier, and CALCRIM No. 2577,
Explosion of Explosive or Destructive Device Causing Bodily Injury.
WEAPONS CALCRIM No. 2578
457
0121