Section 2570 | CALCRIM (Jury Instructions)

BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant possessed multiple
items, the court has a sua sponte duty to instruct on unanimity. (People v.
Heideman (1976) 58 Cal.App.3d 321, 333 [130 Cal.Rptr. 349].) Give the bracketed
paragraph that begins, “The People allege that the defendant possessed the following
destructive devices,” inserting the items alleged.
Give the bracketed definition of “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 Penal Code section 16460, the court may instead give the bracketed
sentence stating that the listed item “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
Penal Code section 18900 allows for the possession of a destructive device with a
permit. The existence of a valid permit is an affirmative defense. (People v.
Yoshimura (1979) 91 Cal.App.3d 609, 627–629 [154 Cal.Rptr. 314].) 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].)
AUTHORITY
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Elements. Pen. Code, § 18710.
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Destructive Device Defined. Pen. Code, § 16460.
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Permit Exemption. Pen. Code, § 18900; People v. Yoshimura (1979) 91
CALCRIM No. 2570
WEAPONS
438

Cal.App.3d 609, 627–628 [154 Cal.Rptr. 314].
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Knowledge. See People v.