Sec 12303 of the California Penal Code prohibits the possession of destructive devices. The following elements need to be proven in order to be convicted of the crime:
a) The individual possessed a destructive device;
b) The individual knew of such possession;
c) The individual knew it was a destructive device;
Possession is defined as control, which is actual possession and constructive possession and can be exclusively by an individual or jointly by two or more people. On the destructive device, it is defined as follows:
1) A projectile containing any explosive or incendiary material or any other chemical substance, including but not limited to known as tracer or incendiary ammunition except those kinds used for shotguns;
2) Any bomb, grenade, explosive missile or similar device or any launching device used therefore;
3) Any weapon of a caliber greater than 0.60 caliber which fires fixed ammunition or any ammunition therefore;
4) Any rocket, rocket propelled projectile or similar device of a diameter larger than 0.60 inch or any launching device therefore and any rocket, rocket propelled projectile or similar device containing any explosive or incendiary material or any other chemical substance other than the propellant for that device, except those devices as are designed primarily for emergency or distress signaling purposes;
5) Any breakable container which contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited other than a device which is commercially manufactured primarily for the purpose of illumination;
6) Any sealed device containing dry ice (C02) or other chemically reactive substances assembled for the purpose of causing an explosion by a chemical reaction;
Knowledge that the individual possessed the destructive device makes them liable under the law.
The criminal offense is considered as a wobbler, meaning that the offense can be prosecuted as either as a misdemeanor or a felony offense, depending on the facts of the case and the individual’s criminal history. If convicted of a misdemeanor offense, then the imposable penalties would be up to one year in county jail and payment of a fine amounting to $10,000. For a felony conviction, the imposable penalty would be payment of a $10,000 fine and imprisonment of sixteen (16) months, two (2) or three (3) years in state prison.
An additional one (1) year prison sentence is imposed when the accused used the destructive device during the commission of a felony or attempted felony under Sec 12022 of the California Penal Code. When a death or an injury occurs when the destructive device is used, then additional charges would be made under the heading “aggravated crimes involving destructive devices or explosives”. When an alien or tourist commits this crime, then the additional penalty of deportation is to be imposed.
The following are the aggravated crimes involving the use of destructive devices or explosives:
a) Penal Code 12303.1 PC — Carrying or placing an explosive or destructive device on a passenger vessel, aircraft, car, or other vehicle,
b) Penal Code 12303.2 PC — Carrying or possessing destructive devices or explosives in certain prohibited places,
c) Penal Code 12030.3 PC — Possession with the intent to injure or intimidate another person or with the intent to injure or destroy property,
d) Penal Code sections 12303.6 — Sale or transportation of destructive devices other than fixed ammunition,
e) Penal Code 12308 PC — Acts involving explosives or destructive devices with the intent to murder,
f) Penal Code 12309 PC — Acts involving destructive devices or explosives that result in bodily injury,
g) Penal Code 12310 PC — Acts involving explosives or destructive devices causing death, mayhem, or great bodily injury, and
h) Penal Code 12312 PC — Possessing designated materials with the intent to make an explosive or destructive device.
The crime of possession of destructive devices or explosives is a serious offense in California. Should you be or know anyone undergoing this process, do reach out to the lawyers at the Law Offices of Ramiro J. Lluis for a free consultation today.