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Penal Code 18710 PC – Possession of Destructive Devices or Explosives

July 13, 2021 California Penal Code

Penal Code 18710 PC is the California statute that makes it illegal and therefore a crime to possess a “destructive device.” This classification includes bombs, grenades, explosive missiles, projectiles containing incendiary material, and certain types of rockets or rocket-propelled projectiles.

This section is an unforgiving law because it makes it a crime simply to possess one of these devices because of the danger they can cause. The law is so strict that a person doesn’t need to have had any intention to explode the device or use it in any way. 

Nonetheless, to be guilty of the California crime of possessing a bomb or other explosive device, you do need to have known both:

  • That you possessed the device, and
  • That it was a destructive device.

In this way, control of a bomb/destructive device is like certain other California “possession” crimes, such as Health & Safety Code 11350 HS possession of a controlled substance and Penal Code 29800 PC felon in possession of a firearm.

  1. The penalties
  2. Some legal defenses
  3. The meaning of possessing a destructive device
  4. Possession of destructive device
  5. Definition of a destructive device
  6. Knowledge of destructive device
  7. Penalties for possessing a destructive device
  8. Enhanced penalties for specific situations
  9. Consequences for non-citizens
  10. A legal defense 
  11. Related crimes

The penalties

Penal Code 18710 PC possession of explosives is a wobblerin California law. This means that one will be put on trial for either a misdemeanor or a felony, depending on

  • Your criminal history, and
  • The specific circumstances of your alleged offense.

Misdemeanor penalties for possession of a bomb/destructive device could comprise of up to 1 year in county jail and/or a fine of up to $1,000.

However, if the crime is prosecuted as a felony, you could face 16 months, 2 years or 3 years in California state prison, and/or a fine of up to $10,000.

Some legal defenses

There are numerous legal defenses you can use to help your case.

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 the result of an illegal search or seizure.

To help you comprehend the crime of possessing explosives or a destructive device in California, our California criminal defense attorneys will address the following:

The meaning of possessing a destructive device

In order for you to be found guilty of Penal Code 18710 PC, California’s law against possessing destructive devices, the prosecutor must ascertain the following facts (known as “elements of the crime”):

  • You possessed a destructive device;
  • You knew that you possessed a destructive device; and
  • You knew that what you possessed was a destructive device.

Taken together, these three elements make up the legal definition of possession of a bomb or other destructive device.

Possession of destructive device

Under California law, “possession” of a destructive device can happen in two ways:

  • Actual possession, or
  • Constructive possession.

Actual possession is when you have the bomb or other device in your immediate physical possession. Constructive possession however, is when you have control over the device without actually having immediate physical possession of it.

Example: Olaf is arrested while carrying a Molotov cocktail. The police then get a California search warrant for his home and find several hand grenades in his garage.

Olaf had actual possession of the Molotov cocktail—he was carrying it. And he had constructive possession of the hand grenades—because they were on his property, he is presumed to have control over them.

It is conceivable for more than one person to possess the same device. This subject is probable to come up with constructive possession cases.

Example: Olaf has a roommate named Anna. After he is arrested, he tells the police that he and Anna paid for the hand grenades together and consider themselves to both own them.

It is perfectly possible for the prosecutor to charge both Olaf and Anna with constructive possession of the hand grenades.

Note that this piece is often charged together with Health & Safety Code 12085, which makes it a crime to create or possess explosives.

Definition of a destructive device

California law defines a “destructive device” as any of the following:

  • Any projectile containing explosive or combustible material, including the type of ammo known as “ tracer ammunition” (other than tracer ammunition designed for use in shotguns),
  • Any bomb, grenade, explosive missile, or similar device, or any device for launching such a weapon,
  • Any weapon larger than 0.60 caliber that fires fixed ammunition, or any ammunition for such a weapon (but not shotguns, shotgun ammunition, or antique rifles or cannons),
  • Any rocket, rocket-propelled projectile, or comparable device of a diameter greater than 0.60 inch and/or having any explosive or incendiary material, and/or any launching device for such a device, except for devices used primarily for emergency or distress signaling purposes,
  • Any fragile container containing a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and with a wick or similar device capable of being ignited, excluding for devices made primarily as a source of light, and
  • Any sealed device enclosing dry ice or other chemically reactive material that is gathered for the purpose of causing an explosion.
  • But “destructive devices” do not include bullets that comprise of, or carry explosive materials.

Knowledge of destructive device

You are not guilty of Penal Code 18710 PC (formerly Penal Code 12303 PC) possession of a bomb or other destructive device unless you discerned both:

  • That you possessed the device, and
  • That the item you possessed was a destructive device.

Example: When Will’s father dies, Will inherits his house and all his possessions. He moves into the house but doesn’t have the time to sort through all the things in the attic. It turns out that Will’s late father collected weapons and owned several illegal rocket launchers, which are in the attic of the house Will owns and are now Will’s. But because Will does not know that he possesses these devices, he is not criminally liable under Penal Code 18710 PC.

Example: Tanya’s boyfriend Frank gives her several hand grenades and asks her to keep them for him for a while. He tells her that they are just replicas and that he doesn’t have space for them in his apartment. Tanya is not guilty of possessing a bomb or other destructive device—because she does not know that the objects she is holding for Frank are actual destructive devices.

Penalties for possessing a destructive device

Penal Code 18710 PC (formerly Penal Code 12303 PC) possessing a destructive device is what is recognized as a “wobbler crime.” This means that it may be prosecuted and penalized as either a misdemeanor or a felony, on the basis of:

  • Your criminal history, and
  • The exact circumstances of the alleged offense.

Potential misdemeanor penalties include:

  • Up to 1 year in county jail, and/or
  • A fine of up to $1,000.

Potential felony penalties include:

Unlike numerous other California offenses, the judge cannot sentence you to California probation instead of imprisonment or prison if you are guilty of possessing explosives or a harmful device.

Furthermore, if convicted of this crime, the damaging gadget will most likely be confiscated and destroyed.

Enhanced penalties for specific situations

California Penal Code 18715 PC offers for greater penalties if you possess an explosive device recklessly or maliciously, in any of the following locations:

• Any public street or highway, • Any theater, hall, school, college, church, hotel, or other public facility, • Any private residence, • Any airplane, passenger train, vehicle, cable car, or vessel that carries passengers for hire, or • Any other public area ordinarily passed by humans

If prosecuted under Penal Code 18715 PC because the prosecutor thinks they can prove your possession was reckless or malicious —then you will face felony penalties of 2, 4, or 6 years in prison.

Consequences for non-citizens

Lastly, if you are not a United States citizen, you could face deportation measures if you are convicted under Penal Code 18710 PC – because possession of a destructive device is a deportable crime.

A legal defense

If you’ve been charged with possessing a bomb or a harmful device, a skilled criminal defense attorney can help you establish one or more legal defenses that could help you get your charges reduced, dismissed, or acquitted.

These include:

You have a valid permit to possess the device

If you obtain a permission, California law allows you to possess otherwise illegal harmful devices. The California Department of Justice issues these permits.

Possessing a valid explosives permit is referred to as a “affirmative defense” to the offense. This implies that you agree to produce evidence during your trial to demonstrate that you held a legal permission.

If you present enough evidence to create a reasonable doubt about whether or not you had a permit, the prosecutor must prove that you didn’t have one beyond a reasonable doubt.

The materials/element/object doesn’t qualify as a “destructive device”

It is plausible that the explosive device you are accused of possessing doesn’t actually meet the legal definition of a destructive device.

You are exempt from prosecution on this charge

Law enforcement officers who are on duty and acting within the scope of their employment, members of the United States armed forces who are on duty and acting within the scope of their employment, and firefighters who are on duty and acting within the scope of their employment are all exempt from prosecution under Penal Code 18710 PC.

The charges against you should be dismissed if you belong to one of these exempted categories.

Falsely accused andwrongly arrested.

People falsely accuse one another of crimes for a variety of reasons, one of which is to avoid legal liability for their own criminal acts.

Unfortunately, it is relatively easy to “frame” someone else for a crime involving just possession—for example, by concealing the prohibited item in their home or car.

If this happens to you, you’ll need the assistance of a criminal defense attorney to compile and present all of the evidence that could lead to your acquittal.

If evidence against you is the result of an illegal search or seizure

Even if you are technically guilty of carrying explosives, the judge may have to dismiss the charges if we can show that the police discovered about the device through an improper search or seizure. 

  • Only when law enforcement has probable cause to hold you and/or examine your property can they detain you for possessing an illegal item.
  • A legal search warrant from the state of California enabling them to search your person or property, or
  • Your permission to a search of your person or property on your own volition.

If the search or seizure that led to the discovery of the illegal explosive device was illegal, your lawyer can submit a petition to suppress evidence under Penal Code 1538.5 PC, which will have any evidence obtained as a result of that search thrown out of court.

Related crimes

The California Penal Code comprises of a number of closely associated offenses to Penal Code 18710 PC (formerly Penal Code 12303 PC) possession of a bomb/destructive device. Several of these are:

  • Penal Code 18720 PC possession of materials to make a destructive device
  • Sale or transportation of destructive device
  • Possessing or exploding destructive device with intent to injure or commit murder
  • Exploding a device and causing injury or death
  • Burglary with explosives

The California criminal defense attorneys at Spodek Law Group can help you with your 18710 PC charge.  Call us today for a free consultation. 

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