California Criminal Jury Instructions (CALCRIM) (2017)

2579. Possession of Materials to Make Destructive Device or Explosive

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2579.Possession of Materials to Make Destructive Device or
Explosive (Pen. Code, § 18720)
The defendant is charged [in Count ] with unlawfully possessing
a (substance[,]/[or] material[,]/ [or] combination of substances and
materials) with the intent to make (an explosive/ [or] a destructive
device) [in violation of Penal Code section 18720].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a (substance[,]/ [or] material[,]/ [or]
combination of substances and materials);
AND
2. When the defendant possessed (that/those) item[s], (he/she)
intended to make (an explosive/ [or] a destructive device).
[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.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to
control it), either personally or through another person.]
<Defense: Permit>
[The defendant did not unlawfully possess a (substance[,]/ [or]
material[,]/ [or] combination of substances and materials) if (he/she) had
a valid permit to make (an explosive/ [or] a destructive device). The
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People have the burden of proving beyond a reasonable doubt that the
defendant did not have a valid permit to make (an explosive/ [or] 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 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].)
Defenses—Instructional Duty
The existence of a valid permit is an affirmative defense to a violation of Penal
Code section 18720. (People v. Yoshimura (1979) 91 Cal.App.3d 609, 627–629
[154 Cal.Rptr. 314] [discussing repealed Penal Code section 12312].) The
defendant bears the burden of producing evidence of a valid permit. If there is
sufficient evidence to raise a reasonable doubt about the existence of a permit, 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].)
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AUTHORITY
• Elements. Pen. Code, § 18720.
• Explosive Defined. Health & Saf. Code, § 12000.
• Destructive Device Defined. Pen. Code, § 16460.
• Permit Exemption. Pen. Code, § 18900; People v. Yoshimura (1979) 91
Cal.App.3d 609, 627–628 [154 Cal.Rptr. 314].
• Substance or Material. People v. Yoshimura (1976) 62 Cal.App.3d 410, 415
[133 Cal.Rptr. 228].
• 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).
RELATED ISSUES
“Substance” or “Material” Not Unconstitutionally Vague
[Now-repealed] Section 12312 provides that possession of a “substance” or
“material” is punishable only if the possession is with the specific intent to
make a destructive device or explosive . . . . When the statute is thus read as a
whole, the vagueness of the meaning of “substance” and “material” is
eliminated, and the terms are seen to refer to constituent or necessary items in
the construction of nonlicensed destructive devices and explosives.
(People v. Yoshimura (1976) 62 Cal.App.3d 410, 415 [133 Cal.Rptr. 228].)
2580–2589. Reserved for Future Use
CALCRIM No. 2579 WEAPONS
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