Return to CALJIC Part 5-8 – Contents
F 8.81.4 n1 Murder By Destructive Device, Etc. (PC 190.2(a)(4) & PC 190.2(a)(6)): What Is A Bomb Or Explosive Device?
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 8.81.4 n2 Murder By Destructive Device, Etc. (PC 190.2(a)(4) & PC 190.2(a)(6)): Components Must Be An Explosive
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 (People v. Westoby 63 CA3d at 795; see also In re Brian K UNPUBLISHED (G010547).)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.]
F 8.81.4a
Special Circumstances: Murder By Bomb Or Explosive — Definition Of Explosive
(PC 190.2(a)(4) & PC 190.2(a)(6))
*Add the following after first sentence of last paragraph of CJ 8.81.4:
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, 599-606 [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.” (Id. 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. (Id. at 604.) The court adopted the entirety of HS 12000 as the definition of an explosive. (Clark 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 at 605-06.)
The definition of explosive in CJ 8.81.4 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.]
F 8.81.4b
Definition Of Destructive Device
(PC 12301/PC 12303.2/PC 12303.3/PC 12303.6/PC 12312)
*Add to CJ 8.81.4:
To be a destructive device, the device must be capable of causing substantial property damage or injury to life.
Points and Authorities
The urgency clause of the 1970 statute which amended PC 12301 and added PC 12303.3 referred to the need for new sanctions to deter actions “which endanger many lives and cause extremely severe damage to property, ….” (Stats. 1970, Ch. 771, § 11, p. 1458.)
The decisions affirming convictions for possession or use of a destructive device have all involved devices with an unquestioned destructive potential, such as a “nitro cord” (People v. Quinn (76) 57 CA3d 251 [129 CR 139]), two or three sticks of dynamite (People v. Heideman (76) 58 CA3d 321 [130 CR 349]), or a pipe bomb (People v. Westoby (76) 63 CA3d 790 [134 CR 97].) Upholding a conviction under the facts of the case, the court in People v. Quinn 57 CA3d at 259, reserved the question whether PC 12301 would present constitutional “vagueness problems as construed and applied in other situations, for example, those involving cherry bombs, ….” It is true that Heideman and Westoby both involved devices requiring further assembly for detonation, but they do not suggest that a non-explosive device comes with the statute. They hold only that a destructive device need not be fully assembled and “set to explode.” (Westoby 63 CA3d at 795.) Though federal decisions generally rest on the distinct language of a more complex statute, it is significant that two decisions have declined to apply the “destructive device” definition in 26 USC 5845(f), to devices lacking any substantial “capability for destruction of life or property.” (U.S. v. One 1972 Chevrolet El Camino Pick. Truck (D. Neb. 1973) 367 F Supp 755, 756; U.S. v. Peterson (9th Cir. 1973) 475 F2d 806, 811-12.)
The term “destructive device” is used as a basis for felony murder liability (PC 189), special circumstance liability (PC 190.2(a)(4) and (6)), as well as in the substantive offenses defined in PC 12301, et. seq. While none of these statutes specifically state that the device must be capable of causing substantial property damage or injury to life, such a requirement is self-evident.
NOTES
[Additional briefing on this issue and the unpublished opinion in People v. Camou (A045458) are available to FORECITE subscribers. Ask for Brief Bank # B-589 and Opinion Bank # O-137.]
F 8.81.4c
Destructive Device: Definition Of Delivery
*Add to CJ 8.81.4:
For purposes of the special circumstance, one may ‘deliver’ a destructive device by throwing it.
Points and Authorities
In People v. Snead (93) 20 CA4th 1088, 1094 [24 CR2d 922], the court held that the term “deliver” as used in PC 190.2(a)(6) is a term which requires definition. However, in Snead the trial court improperly gave a “fact-intrusive” instruction by telling the jury that throwing a substance through a window constituted delivery. (Snead 20 CA4th at 1095.) The above instruction was suggested by the Snead court as a more neutral alternative.
F 8.81.4d
Explosive Special: “Should Know” Standard Requires Consideration Of A Reasonable
Person In Defendant’s Position
*Add to CJ 8.81.4:
[See FORECITE F 7.32a.]
F 8.81.4e
Destructive Device Special Circumstance: Improper To Direct Verdict On Element
*Modify CJ 8.81.4 to DELETE the following:
[A “destructive device” includes __________.
Points and Authorities
[See FORECITE F 8.81.19a.]
F 8.81.4f
Modification When Crime Involves Fetal Victim
*Modify CJ 8.81.4 in paragraphs which include “human being(s)” as follows:
(See FORECITE F 5.00b.)
