Possessing Destructive or Explosive Devices (Penal Code 18710-18780 PC)

Under California’s Penal Code 18710, if you or someone you know possesses any destructive device other than fixed ammunition of a caliber greater than .60 caliber within the state of California, you may be guilty of the possession of a destructive or explosive device in violation of California Penal Code 18710 – 18780. ¹

What Qualifies as a Destructive Device?

PC 16460 further elaborates on what is considered a destructive device. A destructive device is defined as:

• any projectile containing any explosive or incendiary material or any other chemical substance including…tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns;
• any bomb, grenade, explosive missile, or similar device or any launching device;
• any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch, or any launching device;
• any breakable container that contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited; or
• any sealed device containing dry ice or other chemically reactive substances assembled for the purpose of causing an explosion.

Examples of Destructive or Explosive Devices

There are a variety of weapons and devices that are prohibited in California under this law. Some of these prohibited devices include:

• Bombs;
• Grenades;
• Missiles;
• Land mines; and
• Rocket or grenade launchers.

Destructive devices do not have to be particularly complex to manufacture. For example, a Molotov cocktail (a homemade explosive typically concocted from a bottle, a rag, and flammable chemical substance such as alcohol) will qualify as a destructive device.

Prosecution of Possession of Destructive Device (PC 18710)

In order to be convicted of this crime under PC 18710 – 18780, the prosecution must prove all of the following beyond a reasonable doubt:

• You possessed a destructive device;
• You knew that you possessed it; AND
• You knew that what you possessed was a destructive device. ²

If you and one or more persons have control over a destructive or explosive device at the same time, you are considered to be in possession of it. Also, you do not have to actually hold or touch the device for it to qualify as possession. You have possession if you have control of the device, or the right to control it, either personally or through another person. This means that the device does not have to be physically on you to for you to be in possession.

Sentencing and Punishment for Possessing Destructive or Explosive Devices in California

Under PC 18710(b), if you are found guilty of possessing a destructive device you can be charged with a misdemeanor or felony. If charged with a misdemeanor, you face imprisonment in county jail for a maximum sentence of 364 days, a fine of up to $10,000, or both imprisonment and fine. If charged with a felony, you face 16 months, two or three years in state prison, a fine of up to $10,000, or both.

Under What Circumstances Will Punishment Be More Severe?

Depending on the circumstances of your case, your sentence may be increased. Possessing a destructive device or explosive in specified locations can increase your sentence. Under PC 18715, these places include:

• on a public street or highway;
• in or near a theater, hall, school, college, church, hotel, or other public building;
• in or near a private habitation;
• in, on, or near an aircraft, railway passenger train, car, cable road, cable car, or vessel which transports passengers; or
• in any place commonly passed by human beings.

If you are convicted of this crime, you face two, four, or six years in state prison.

Additional Sentence Enhancements

Under PC 18740, if it is proven that you had the intent to injure, intimidate, or terrify a person, or to wrongfully injure or destroy property, your sentence can increase to three, five, or seven years in prison. Under PC 18750, if you have malicious intent to injure another human being with the device, you may be sentenced to imprisonment of five, seven, or nine years in state prison. Finally, under PC 18755, if your device has caused the death or mayhem of another human being, you could be sentenced to state prison for life without the possibility of parole.

Defenses to a Charge of Possession of Destructive or Explosive Devices

If you are charged with possession of a destructive device, a skilled criminal defense attorney may be able to raise several defenses on your behalf. Some of these may include:

• You had a valid permit to possess the device;
• The device doesn't qualify as a “destructive device” under California law;
• You are exempt from prosecution under this law;
• You were falsely accused and/or wrongly arrested; and
• Evidence in the case against you is insufficient.

Permit Exemption. If you have a valid permit to possess a destructive device, you may not be found guilty of the unlawful possession of the device. Under PC 18800, certain individuals are exempt from the unlawful possession of destructive or explosive devices including:

• peace officers on duty and acting within the scope and course of employment; ³
• members of the military (Army, Navy, Air Force, Marine Corps, or the National Guard) on duty and acting within the scope of employment; AND
• any regularly employed and paid officer, employee, or member of a fire department or fire protection or firefighting agency while on duty and acting within the scope and course of employment.

Frequently Asked Questions on Possession of Destructive or Explosive Devices

What if I did not know the device or weapon was illegal?

In California, the prosecution must prove that you knew that the device was destructive. If you did not have knowledge of the potential harm that the device could cause, you should not be convicted of this crime.

Are common chemical compounds such as gasoline considered destructive devices for purposes of PC 18710?

No, if you are in possession of commonly found chemicals such as gasoline or tracer ammunition (manufactured with the purpose of use in lawful shotguns), you may not be found guilty of possession of a destructive device. Likewise, gasoline being a prevalent compound used in numerous non-criminal applications would not qualify as a destructive device. ⁴ However, if you possess any substance or material with the intent to unlawfully make a destructive device you could be found guilty of a felony under PC 18720, punishable by two, three, or four years in prison.

I am a retired military veteran and I was arrested for possessing a grenade. Can I be convicted of this crime?

Yes. Although members of the military are exempt from unlawful possession of destructive devices, you must have possessed the device while on active duty while acting within the scope of your military employment. Thus, if you are a retired military veteran found in unlawful possession of a grenade or other destructive device, you could be convicted of this crime.

Why Should You Call the Criminal Defense Attorneys at Wallin & Klarich?

If you are accused of possession of destructive or explosive devices, we are here to help. Our experienced attorneys at Wallin & Klarich understand that facing criminal charges is a stressful and frightening time. The attorneys at Wallin & Klarich have more than 40 years of experience successfully defending those charged with possession of explosive or destructive devices in California. If you have been charged with this crime in California, contact Wallin & Klarich today.

With offices in Orange County, Riverside, San Bernardino, Victorville, Torrance, West Covina, Los Angeles and San Diego, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.

<sup>1. [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=18001-19000&file=18710-18780]↩
2. [http://www.courts.ca.gov/partners/documents/calcrim_juryins.pdf]↩
3. [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=18001-19000&file=18800]↩
4. [People v. Clark (1990) 50 Cal.3d 583, 604 [268 Cal.Rptr. 399, 789 P.2d 127]↩</sup>