CALCRIM No. 722. Special Circumstances: By Means of Destructive Device (Pen. Code, § 190.2(a)(4) & (6))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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722.Special Circumstances: By Means of Destructive Device
(Pen. Code, § 190.2(a)(4) & (6))
The defendant is charged with the special circumstance of murder by
use of (a/an) (bomb[,]/ [or] explosive[,]/ [or] destructive device) [in
violation of <insert appropriate code section[s]>].
To prove that this special circumstance is true, the People must prove
that:
1. The murder was committed by using (a/an) (bomb[,]/ [or]
explosive[,]/ [or] destructive device);
<Alternative 2A - device planted, Pen. Code, § 190.2(a)(4)>
[2. The (bomb[,]/ [or] explosive[,]/ [or] destructive device) was
planted, hidden, or concealed in (a/an) (place[,]/ [or] area[,]/ [or]
dwelling[,]/ [or] building[,]/ [or] structure);]
<Alternative 2B - device mailed or delivered, Pen. Code, § 190.2(a)(6)>
[2. The defendant (mailed or delivered[,]/ [or] attempted to mail or
deliver[,]/ [or] caused to be mailed or delivered) the (bomb[,]/ [or]
explosive[,]/ [or] destructive device);]
AND
3. The defendant knew, or reasonably should have known, that (his/
her) actions would create a great risk of death to one or more
human beings.
[An explosive is any substance, or combination of substances, (1) whose
main or common purpose is to detonate or rapidly combust and (2) that
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 supported by
evidence from Pen. Code, § 16460>.]
[<insert type of destructive device from Pen. Code, § 16460>
is a destructive device.]
[For the purpose of this special circumstance, delivery of (a/an) (bomb[,]/
[or] explosive[,]/ [or] destructive device) includes throwing it.]
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New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
Intent to kill is not required for the actual killer but is required for an accomplice. If
the evidence raises the issue of accomplice liability, the court has a sua sponte duty
to instruct on that issue. (See People v. Jones (2003) 30 Cal.4th 1084, 1117 [135
Cal.Rptr.2d 370, 70 P.3d 359].) Give CALCRIM No. 702, Special Circumstances:
Intent Requirement for Accomplice After June 5, 1990 - Other Than Felony Murder.
If the homicide occurred prior to June 5, 1990, give CALCRIM No. 701, Special
Circumstances: Intent Requirement for Accomplice Before June 6, 1990.
In element 2, give alternative 2A, stating that the device was “planted,” if the
defendant is charged with the special circumstance under Penal Code section
190.2(a)(4). Give alternative 2B, stating that the device was “mailed or delivered,”
if the defendant is charged with the special circumstance under Penal Code section
190.2(a)(6).
Give the bracketed paragraphs defining “explosive” if an explosive was used.
(Health & Safety Code, § 12000; People v. Clark (1990) 50 Cal.3d 583, 603 [268
Cal.Rptr. 399, 789 P.2d 127].) Give the bracketed definition of “destructive device,”
inserting the appropriate description from Penal Code section 16460, if a device
covered by that statute was used. If the case involves a specific explosive listed in
Health and Safety Code section 12000 or a specific destructive device listed in
Penal Code section 16460, the court may also give the bracketed sentence stating
that the listed item “is an explosive” or “is a destructive device.” For example,
“Dynamite is an explosive.” However, the court may not instruct the jury that the
defendant used an explosive. For example, the court may not state that “the
defendant used an explosive, dynamite,” or “the material used by the defendant,
dynamite, is an explosive.” (People v. Dimitrov (1995) 33 Cal.App.4th 18, 25-26
[39 Cal.Rptr.2d 257].)
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].)
Give the bracketed sentence stating that “deliver” includes throwing if the facts
demonstrate the item was thrown. (People v. Snead (1993) 20 Cal.App.4th 1088,
1095 [24 Cal.Rptr.2d 922].)
CALCRIM No. 722 HOMICIDE
444
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AUTHORITY
• Special Circumstance: Planting Device. Pen. Code, § 190.2(a)(4).
• Special Circumstance: Mailing or Delivering Device. Pen. Code, § 190.2(a)(6).
• Explosive Defined. Health & Saf. Code, § 12000; People v. Clark (1990) 50
Cal.3d 583, 603 [268 Cal.Rptr. 399, 789 P.2d 127].
• Destructive Device Defined. Penal Code, § 16460.
RELATED ISSUES
Gasoline Not an Explosive
“Under the statutory definition of explosive, the nature of the substance, not the
manner in which a substance is used, is determinative.” (People v. Clark (1990) 50
Cal.3d 583, 604 [268 Cal.Rptr. 399, 789 P.2d 127] [gasoline, by its nature, not an
explosive even where used to ignite a fire].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 524.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13[4], [6] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[2][a][ii] (Matthew Bender).
HOMICIDE CALCRIM No. 722
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