Section 2572 | CALCRIM (Jury Instructions)

[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.]
[The People do not need to prove that the (explosive/ [or] destructive
device) was set to explode.]
[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.]
[The People allege that the defendant possessed the following
(explosive[s]/ [or] destructive device[s]):
<insert description
of each explosive or destructive device when multiple items alleged>. You
may not find the defendant guilty unless all of you agree that the People
have proved that the defendant possessed at least one of the alleged
items and you all agree on which alleged item (he/she) possessed.]
New January 2006; Revised February 2012, September 2019
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,” inserting the items alleged. The jury does not have to be unanimous
about whether the defendant acted recklessly or maliciously. (Ibid.) The jury also
does not have to agree on whether the item was an explosive or a destructive
device. (People v. Westoby (1976) 63 Cal.App.3d 790, 797 [134 Cal.Rptr. 97]; see
also People v. Quinn, (1976) 57 Cal.App.3d 251, 257 [129 Cal.Rptr. 139] [a bomb
may be an explosive and may be a destructive device].)
CALCRIM No. 2572
WEAPONS
444

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