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F 8.22 n1 Definition Of Bomb Or Explosive Device (PC 189).
See generally, PC 12301 – PC 12303; see also People v. Westoby (76) 63 CA3d 790, 797 [134 CR 97] [pipe bomb was either a “bomb” or an “explosive]”; People v. Heideman (76) 58 CA3d 321, 332-333 [130 CR 349]; People v. Quinn (76) 57 CA3d 251, 259 [129 CR 139] [device made from “nitro cord” was either a “bomb” or “explosive”].
F 8.22 n2 Murder By Destructive Device: Components Must Be An Explosive (PC 189).
When none of the components of the device nor any combination thereof rises to the level of an explosive, then it is not a destructive device. People v. Westoby (76) 63 CA3d at 795; see also In re Brian K. UNPUBLISHED (G010547). [The Brian K. opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-104.]
RESEARCH NOTES: See Annotation, Possession of bomb, Molotov cocktail, or similar device as criminal offense, 42 ALR3d 1230 and Later Case Service.
F 8.22a
Murder By Destructive Device: Definition Of Explosive
(PC 189)
*Add to CJ 8.22:
An explosive is a material which causes a concentrated explosion in which the concussive force is generated by the transformation of the solid into a rapidly expanding gas.
Points and Authorities
In People v. Clark (90) 50 C3d 583, 599 [268 CR 399], the defendant threw gasoline into a home and ignited the gasoline vapors with highway flares that he threw in after the gasoline. The vapor/air combination in the rooms expanded instantaneously resulting in a “flash burn” and “overpressure effect” or explosion that blew out the window causing burn injuries that led to the death of one of the occupants. It was undisputed therefore that the defendant caused a “lethal explosion.” (Clark 50 C3d at 599.)
The jury found the murder by explosive device special circumstance to be true and the Supreme Court considered whether the gasoline qualified as an explosive within the meaning of PC 190.2(a)(4) and PC 190.2(a)(6). The court concluded that gasoline is not an explosive and defined an explosive as set forth in the above instruction. (Clark 50 C3d at 604.) The court adopted the entirety of HS 12000 as the definition of an explosive. (Clark 50 C3d at 601.) Therefore gasoline is not an explosive within the meaning of PC 190.2(a)(4). Moreover, when one throws gasoline he does not deliver an explosive within the meaning of PC 190.2(a)(6). (Clark 50 C3d at 605-06.)
The definition of explosive in CJ 8.22 should be supplemented to include the Clark definition.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
