Section 2579 | CALCRIM (Jury Instructions)

People have the burden of proving beyond a reasonable doubt that the
defendant did not have a valid permit to make (an explosive/ [or] a
destructive device). If the People have not met this burden, you must
find the defendant not guilty of this crime.]
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
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 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
The existence of a valid permit is an affirmative defense to a violation of Penal
Code section 18720. (People v. Yoshimura (1979) 91 Cal.App.3d 609, 627–629 [154
Cal.Rptr. 314] [discussing repealed Penal Code section 12312].) 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].)
WEAPONS
CALCRIM No. 2579
469

AUTHORITY
•
Elements. Pen. Code, § 18720.
•
Explosive Defined. Health & Saf. Code, § 12000.
•
Destructive Device Defined. Pen. Code, § 16460.
•
Permit Exemption. Pen. Code, § 18900; People v. Yoshimur