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Destructive Device: Definition
(PC 12301, PC 12303.2, PC 12303.3,
PC 12303.6 and PC 12312)
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, 256-57 [129 CR 139],) two or three sticks of dynamite (People v. Heideman (76) 58 CA3d 321, 332-33 [130 CR 349],) or a pipe bomb (People v. Westoby (76) 63 CA3d 790, 794-95 [134 CR 97].) Upholding a conviction under the facts of the case, the court inQuinn reserved the question whether PC 12301 would present constitutional “vagueness problems as construed and applied in other situations, for example, those involving cherry bombs, ….” (People v. Quinn 57 CA3d at 259.) 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-up 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.
In People v. Dimitrov (95) 33 CA4th 18, 25-26 [39 CR2d 257], the court rejected an argument that a destructive device must have the capability of causing substantial property damage or injury to life.
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(C).]
[Additional briefing on this issue and the opinion in People v. Camou UNPUBLISHED (A045458) are available to FORECITE subscribers. Ask for Brief Bank # B-589 and Opinion Bank # O-137.]
Explosive Devices: In its Jan. 1994 pocket part, CALJIC has included instructions for explosive device prosecutions. (See CJ 12.55 – CJ 12.56; see also FORECITE F 12.55, et seq.)