Section 2575 | CALCRIM (Jury Instructions)

“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 offer to sell 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
•
Elements. Pen. Code, § 18730.
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Destructive Device Defined. Pen. Code, § 16460.
•
Specific Intent Required for Offer to Sell. People v. Jackson (1963) 59 Cal.2d
468, 469–470 [30 Cal.Rptr. 329, 381 P.2d 1].
•
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, 601 [165 Cal.Rptr.
463].
•
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
•
Possession of Destructive Device. Pen. Code, § 18710; People v. Westoby (1976)
63 Cal.App.3d 790, 795 [134 Cal.Rptr. 97].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 225–226, 227.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
WEAPONS
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Against Order, § 144.01[1][c] (Matthew Bender).
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WEAPONS
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