Section 2574 | CALCRIM (Jury Instructions)

Depending on the device used, give the bracketed definitions 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 18730 allows for the sale, offer to sell, or transportation of a
destructive device “as provided by this chapter.” As with a permit for possession,
the existence of a legally valid basis for the defendant to sell or transport a
destructive device is an affirmative defense. (See People v. Yoshimura (1979) 91
Cal.App.3d 609, 627–629 [154 Cal.Rptr. 314].) If there is sufficient evidence to
raise a reasonable doubt about the existence of a legal basis for the defendant’s
actions, 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, § 18730.
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Destructive Device Defined. Pen. Code, § 16460.
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Knowledge. See People v. Yoshimura (1979) 91 Cal.App.3d 609, 619 [154
Cal.Rptr. 314]; People v. Guy (1980) 107 Cal.App.3d 593 [165 Cal.Rptr. 463].
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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].
LESSER INCLUDED OFFENSES
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Possession of Destructive Device. Pen. Code, § 18710; P