California’s Law Against Possessing Destructive Devices or Explosives

Penal Code 12303 PC

California Penal Code 12303 PC prohibits possessing any destructive device other than "fixed ammunition".¹ This charge is separate and distinct from Penal Code 12020 PC, California’s law against carrying concealed explosive substances.²

Even by itself, Penal Code 12303 PC subjects you to incarceration and substantial fines. But when coupled with more aggravated acts involving destructive devices or other explosives, it can subject you to life in prison without the possibility of parole.

Our law firm…comprised of former police and prosecutors…is dedicated to helping you fight your California firearms offenses. We have decades of experience handling these types of cases, which allows us to help you present the most successful defense possible.

Below, our California criminal defense attorneys³ address the following:

(Click on a title below to proceed directly to that section)

1) The Legal Definition of "Possessing
    Destructive Devices"

2) Legal Defenses

3) California Penalties

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California Firearm Offenses; Penal Code 12020 PC California’s Laws Against Carrying Concealed Dirks, Daggers, and Explosive Substances; Penal Code 12025 PC Carrying a Concealed Weapon; Penal Code 12050 PC Concealed Weapons Permits; Penal Code 12022 Personal Use of a Firearm Sentencing Enhancement; California Legal Defenses; Penal Code 12021 PC Felon with a Firearm; and Restoring Your California Firearms’ Rights.

1) The Legal Definition of "Possessing
    Destructive Devices"

In order to convict you of Penal Code 12303 PC, California’s law against possessing destructive devices, prosecutors must prove the following facts (otherwise known as "elements of the crime"):

1. that you possessed a destructive device,



2. that you knew you possessed it, and



3. that you knew it was a destructive device.⁴

Let’s take a closer look at some of these terms to gain a better understanding of their legal definitions.

Possession

California law essentially defines "possession" as control. There are two types of possession: actual possession and constructive possession.⁵ And either type may be held exclusively by an individual or jointly by two or more people.

"Actual possession" means that you have direct, physical control over the destructive device.

Example: You are holding a pipe bomb.

"Constructive possession" means that you have access to the destructive device or the right to control it, even when you are not in physical possession of the object.

Example: Even while you are away from your home, you have constructive possession of the pipe bomb that you own and keep in your garage.

This means that even if you don’t physically have the explosive device on your person…but you have solitary control over it (or even jointly share that control with another person), prosecutors can convict you of possessing it.

Destructive device

There is no precise definition of what constitutes a destructive device. Instead, the California Legislature has listed six classes of weapons that all qualify as destructive devices. These include:

1. any projectile containing any explosive or incendiary material or any other chemical substance, including, but not limited to, that which is commonly known as tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns,



2. any bomb, grenade, explosive missile, or similar device or any launching device used therefor,



3. any weapon of a caliber greater than 0.60 caliber which fires fixed ammunition, or any ammunition therefor,



4. any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch, or any launching device therefor, 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, and



6. any sealed device containing dry ice (CO2) or other chemically reactive substances assembled for the purpose of causing an explosion by a chemical reaction.⁶

Knowledge

There are two types of knowledge that are required under Penal Code 12030 PC: (1) knowledge that you possessed the illegal item, and (2) knowledge that the possessed item was, in fact, a destructive device.

Knowledge that you possessed the destructive device

If you don’t know that you possess a destructive device, you shouldn’t bear responsibility for this offense.

Examples: Perhaps someone places a small explosive in your jacket pocket or purse while you aren’t paying attention. Or, perhaps while you are out, one of your roommates stashes a handmade bomb at the top of your closet.

As you can imagine, there are an infinite number of possibilities where you might not know you are physically carrying or constructively possessing a bomb or explosive device.

Knowledge that the object was a destructive device

Similarly, if you don’t realize what that the object in your possession is, you should be acquitted of any criminal wrongdoing.

Examples: In order to escape his own criminal liability, Bob hands you a grenade before he disappears, telling you that it is only a replica. He then hands someone else a small rocket, claiming that it is only a toy.

Since neither you nor the individual holding the rocket know that you’re holding actual live explosives, neither of you is guilty of this crime.

2) Legal Defenses

Fortunately, there are a number of legal defenses that a skilled California criminal defense attorney can present on your behalf. The following are some examples:

You have a valid permit

If you have a valid permit for the destructive device, you aren’t guilty of violating Penal Code 12303 PC.. This is what’s called an "affirmative defense" which means that it’s your responsibility to provide evidence of the valid permit if, in fact, you possess one.⁷

The Department of Justice issues these permits for the purpose of legally collecting, possessing, transporting, or conducting business with explosive weapons and bombs.

This type of permit is separate and distinct from a concealed weapons permit available under California Penal Code 12050 PC which does not authorize you to carry a destructive device. Concealed weapons under Penal Code 12025 PC and concealed weapons permits only apply to "pistols, revolvers, and other firearms capable of being concealed upon a person". Under California law, firearms are not considered to be destructive devices.

The item doesn’t qualify as a destructive device

If, for example, you are accused of possessing a destructive device, but the caliber of the weapon is 0.60 or less, or you are accused of possessing "tracer ammunition", but it was tracer ammunition manufactured for use in shotguns, you shouldn’t be convicted of this offense.

This is because both of these scenarios are exceptions to the definition listed above. And…just like the defense of holding a valid permit for possessing explosives…this is an affirmative defense, which means that it is up to you to prove that the weapon falls within one of the statute’s exceptions.

You are exempt from prosecution

Penal Code 12302 PC states that law enforcement officers, firefighters, and members of the U.S. military who are on duty and acting within the course and scope of their employment are exempt from prosecution for transactions involving destructive devices.⁸

False accusations / wrongful arrest

Referring back to one of the examples above, let’s say that you don’t know that you possess a improvised bomb because one of your roommates placed one in your closet while you were out.

Let’s further assume that he did so because the cops were knocking on your door to execute a search warrant and your roommate wanted to escape liability by pointing the finger at you. Given these facts, it is very likely that you will be arrested--wrongfully arrested--for possessing a destructive device.

As Long Beach criminal defense attorney Zachary McCready explains,⁹ "People falsely accuse others of crimes for a variety of reasons…jealousy, anger, revenge, or to absolve themselves of their own criminal culpability. We know the most effective ways to prove that false accusations and wrongful arrests are just that -- wrong."

Illegal search and seizure

Even if you are technically guilty of possessing a bomb, if we can prove that the police discovered the explosive device during an illegal search and seizure, the judge will likely dismiss your charges.

Law enforcement can only legally arrest you for possessing an illegal item when they have

• probable cause to detain you (that is, a reasonable belief that you are or were engaged in criminal activity),



• a valid California search warrant authorizing them to search your person/property (the scope of which they strictly adhere to), or



• your voluntary consent to conduct a search of your person/property.

If the police fail to abide by any of these criteria, your weapon was most likely discovered during an illegal search and seizure.

Police misconduct

And along these same lines, suppose the police…for whatever reason…

• "plant" a bomb or "fabricate" evidence about the facts of your case,



• discover the explosive during an illegal search (that is, without a valid California search warrant, without your consent, or outside the scope of a lawful arrest), or



• in any other way violate your civil rights…

If we can demonstrate that the authorities engaged in this sort of police misconduct, your Penal Code 12303 PC charges could get dismissed.

3) California Penalties

This crime is a "wobbler," which means that prosecutors can charge it as either a misdemeanor or a felony depending on

1. the facts of the case, and



2. your criminal history.

If convicted as a misdemeanor, you face up to one year in a county jail and a maximum fine of $10,000. If convicted of a felony, you face the same fine and 16 months, or two or three years in the California State Prison.¹⁰

If you are accused of using the destructive device during the commission of a felony or attempted felony, you face an additional and consecutive one year prison sentence under Penal Code 12022 PC, California’s sentencing enhancement for personal use of a dangerous or deadly weapon.¹¹

If you use the device, and it causes injury or death to another person, prosecutors will additionally charge you under one of the Penal Code sections listed below under the heading "Aggravated crimes involving destructive devices or explosives".

Loss of destructive device(s)

In addition to the above penalties, a conviction for this offense will likely result in the forfeiture and destruction of the weapon(s).¹²

California weapon offenses and aliens

If you are a legal immigrant or legal alien, a conviction under this section could additionally lead to your deportation.¹³ For more information about how California’s firearm laws affect aliens, please visit our article on California crimes that lead to deportation.

Expunging your record

If you are granted probation in a misdemeanor or felony Penal Code 12303 PC case, you may expunge your California criminal record once you successfully complete the probationary period. However, the judge can deny you an expungement if you suffer a probation violation or fail to adhere to all the terms and conditions of probation.¹⁴

Bear in mind that while an expungement will help clear your criminal record, it will not restore your right to own or possess a firearm if you have been otherwise banned from doing so.¹⁵

Your Right to Own/Possess Firearms

A misdemeanor conviction for possessing a destructive device won’t by itself revoke your right to own or possess a firearm. But if you are convicted of Penal Code 12303 PC as a felony, you will be prohibited from purchasing, receiving, owning, or possessing a firearm for life under Penal Code 12021 PC, California’s "felon with a firearm" law.¹⁶

If you get convicted of a felony under one of the "wobbler" subdivisions of PC 12303…and you successfully have the felony reduced to a misdemeanor…your gun rights will be restored.

Otherwise, and unfortunately, there is no other way to restore your California gun rights. Even a certificate of rehabilitation and/or a governor’s pardon does not restore firearm rights to someone who has been convicted of a felony that involves the use of a dangerous weapon.¹⁷

Aggravated crimes involving destructive devices or explosives

"Possessing" such a weapon is actually the least serious of all of the California firearms offenses that deal with these types of weapons. The more serious offenses include:

• Penal Code 12303.1 PC -- Carrying or placing an explosive or destructive device on a passenger vessel, aircraft, car, or other vehicle,¹⁸



• Penal Code 12303.2 PC -- Carrying or possessing destructive devices or explosives in certain prohibited places,¹⁹



• Penal Code 12030.3 PC -- Possession with the intent to injure or intimidate another person or with the intent to injure or destroy property,²⁰



• Penal Code sections 12303.6 -- Sale or transportation of destructive devices other than fixed ammunition,²¹



• Penal Code 12308 PC -- Acts involving explosives or destructive devices with the intent to murder,²²



• Penal Code 12309 PC -- Acts involving destructive devices or explosives that result in bodily injury,²³



• Penal Code 12310 PC -- Acts involving explosives or destructive devices causing death, mayhem, or great bodily injury,²⁴ and



• Penal Code 12312 PC -- Possessing designated materials with the intent to make an explosive or destructive device.²⁵

These crimes are all felonies. The penalties for most of these offenses range from two to nine years in the state prison.²⁶

If you engage in an act that involves explosives or destructive devices with the intent to commit murder, you face a life sentence with the possibility of parole.²⁷ If you engage in an act that causes death, mayhem, or great bodily injury, you face a life sentence without the possibility of parole.²⁸

Call us for help…

For more information about California’s firearm and weapons laws, or to discuss your case confidentially with one of our attorneys, please don’t hesitate to contact us at Shouse Law Group.

Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada’s firearm and weapons laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.²⁹

Legal References:

¹California Penal Code 12303 PC – Possession of destructive devices. ("Any person, firm, or corporation who, within this state, possesses any destructive device, other than fixed ammunition of a caliber greater than .60 caliber, except as provided by this chapter, is guilty of a public offense and upon conviction thereof shall be punished by imprisonment in the county jail for a term not to exceed one year, or in state prison, or by a fine not to exceed ten thousand dollars ($10,000) or by both such fine and imprisonment.")

²California Penal Code 12020 PC – Carrying a concealed explosive substance. ("(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: (3) Carries concealed upon his or her person any explosive substance, other than fixed ammunition.")

³Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

⁴California Jury Instructions, Criminal, CALJIC 12.55 -- Possession of destructive device. ("Every [person] [,] [firm] [, or] [corporation] who, within California, possesses any destructive device [, other than fixed ammunition of a caliber greater than .60 caliber,] is guilty of a violation of Penal Code section 12303, a crime. In order to prove this crime each of the following elements must be proved: [1] A [person] [ ] within California exercised control over or the right to control a destructive device [other than fixed ammunition of a caliber greater than .60 caliber]; [2] The person knew of its presence and nature as a destructive device.")

⁵Judicial Council Of California Criminal Jury Instruction, CALCRIM 2560 -- Manufacturing, selling, and/or possessing assault weapons. (" [Two or more people may possess something at the same time.] [A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]")

⁶California Penal Code 12301 PC -- Destructive devices; definition.

⁷California Penal Code 12305 -- Permit to conduct business, possess or transport…(a) Every dealer, manufacturer, importer, and exporter of any destructive device, or any motion picture or television studio using destructive devices in the conduct of its business, shall obtain a permit for the conduct of that business from the Department of Justice. (b) Any person, firm, or corporation not mentioned in subdivision (a) shall obtain a permit from the Department of Justice in order to possess or transport any destructive device.")

See also People v. Yoshimura (1979) 91 Cal.App.3d 609, 629. ("In the implausible if not preposterous event that appellant had an exonerating permit, the fact was "peculiarly within her knowledge" and there was nothing "harsh or unfair" in making her bear the burden of proving it. (Ibid.) The trial court did not err in refusing her instructions to the effect that the People bore the burden of proving the contrary.")

⁸California Penal Code 12302 PC -- Exemptions from possessing destructive devices. ("Nothing in this chapter shall prohibit the sale to, purchase by, or possession, transportation, storage, or use of, destructive devices or explosives by:(a) Any peace officer listed in Section 830.1 or 830.2, or any peace officer in the Department of Justice authorized by the Attorney General, while on duty and acting within the scope and course of his or her employment. (b) Any member of the Army, Navy, Air Force, or Marine Corps of the United States, or the National Guard, while on duty and acting within the scope and course of his or her employment. Nothing in this chapter prohibits the sale to, or the purchase, possession, transportation, storage, or use by any person who is a regularly employed and paid officer, employee, or member of a fire department or fire protection or firefighting agency of the federal government, the State of California, a city, county, city and county, district, or other public or municipal corporation or political subdivision of this state, while on duty and acting within the scope and course of his or her employment, of any equipment used by that department or agency in the course of fire suppression.")

⁹Long Beach CA criminal defense lawyer Zachary McCready defends clients accused of weapons-related offenses throughout the South Bay and Orange County, including Torrance, Compton, Newport Beach, Anaheim and Fullerton.

¹⁰See California Penal Code 12303 PC -- Possession of destructive devices, endnote 1, above.

See also California Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years…")

¹¹California Penal Code 12022 PC – Personal use of a firearm or dangerous or deadly weapon sentencing enhancement. ("(b)(1) Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.")

See also CALJIC 17.16 -- Personal Use of Dangerous/Deadly Weapon. ("["A deadly or dangerous weapon" means any weapon, instrument or object that is capable of being used to inflict great bodily injury or death[.]")

¹²California Penal Code 12307 PC -- Destructive devices as a nuisance. ("The possession of any destructive device in violation of this chapter shall be deemed to be a public nuisance and the Attorney General or district attorney of any city, county, or city and county may bring an action before the superior court to enjoin the possession of any destructive device. Any destructive device found to be in violation of this chapter shall be surrendered to the Department of Justice, or to the sheriff or chief of police, if the sheriff or chief of police has elected to perform the services required by this section. The department, sheriff, or chief of police shall destroy the destructive device so as to render it unusable and unrepairable as a destructive device, except upon the filing of a certificate with the department by a judge or district attorney stating that the preservation of the destructive device is necessary to serve the ends of justice.")

¹³8 U.S. Code Section 1227 -- Deportable aliens. ("(a) Classes of deportable aliens. Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens…(2) Criminal offenses…(C) Certain firearm offenses -- Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device [italics added] (as defined in section 921(a) of title 18) in violation of any law is deportable.") Because Penal Code 12303 PC necessarily involves destructive devices, it is a California crime that may lead to deportation.

¹⁴California Penal Code 1203.4 PC -- Change of plea. This section outlines the procedures by which a defendant can expunge his California Penal Code 12303 PC "possession of a destructive device" conviction from his criminal record.

¹⁵California Penal Code 1203.4 PC -- Change of plea. ("Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Section 12021.")

¹⁶California Penal Code 12021 -- Unlawful possession of a firearm. ("(a)(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.")

¹⁷California Penal Code 4852.17 PC -- ("Whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the [California governor’s] pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including but not limited to: (1) the right to vote; (2) the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored [by a governor’s pardon], and Sections 12001 and 12021 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon [which includes the weapons listed under Penal Code 12303 PC, California’s law against possessing a destructive device].")

See also California Penal Code 4854 PC -- Firearms; restoration of rights; exceptions. ("In the granting of a pardon to a person, the Governor may provide that the person is entitled to exercise the right to own, possess and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 12001 and 12021 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.")

¹⁸California Penal Code 12303.1 PC -- Carrying or placement of explosive or destructive device on passenger vessel, aircraft, car or other vehicle; penalty. ("Every person who willfully does any of the following is guilty of a felony and is punishable by imprisonment in the state prison for two, four, or six years: (a) Carries any explosive or destructive device on any vessel, aircraft, car, or other vehicle that transports passengers for hire. (b) Places or carries any explosive or destructive device, while on board any such vessel, aircraft, car or other vehicle, in any hand baggage, roll, or other container. (c) Places any explosive or destructive device in any baggage which is later checked with any common carrier.")

¹⁹California Penal Code 12303.2 PC -- Possession of destructive devices or explosives in or near certain places; felony; punishment. ("Every person who recklessly or maliciously has in his possession any destructive device or any explosive on a public street or highway, in or near any theater, hall, school, college, church, hotel, other public building, or private habitation, in, on, or near any aircraft, railway passenger train, car, cable road or cable car, vessel engaged in carrying passengers for hire, or other public place ordinarily passed by human beings is guilty of a felony, and shall be punishable by imprisonment in the state prison for a period of two, four, or six years.")

²⁰California Penal Code 12303.3 PC -- Wrongful possession, explosion, etc., of destructive device or explosive with intent to injure or intimidate person or to injure or destroy property; felony; punishment. ("Every person who possesses, explodes, ignites, or attempts to explode or ignite any destructive device or any explosive with intent to injure, intimidate, or terrify any person, or with intent to wrongfully injure or destroy any property, is guilty of a felony, and shall be punished by imprisonment in the state prison for a period of three, five, or seven years.")

²¹California Penal Code 12303.6 PC -- Sale or transportation; other than fixed ammunition; punishment. ("Any person, firm, or corporation who, within this state, sells, offers for sale, or knowingly transports any destructive device, other than fixed ammunition of a caliber greater than .60 caliber, except as provided by this chapter, is guilty of a felony and is punishable by imprisonment in the state prison for two, three or four years.")

²²California Penal Code 12308 PC -- Explosion, attempt to explode or ignite destructive device or explosive with intent to murder; felony; punishment. ("Every person who explodes, ignites, or attempts to explode or ignite any destructive device or any explosive with intent to commit murder is guilty of a felony, and shall be punished by imprisonment in the state prison for life with the possibility of parole.")

²³California Penal Code 12309 PC -- Unlawful explosion or ignition of destructive device or explosive causing bodily injury; felony; punishment. ("Every person who willfully and maliciously explodes or ignites any destructive device or any explosive which causes bodily injury to any person is guilty of a felony, and shall be punished by imprisonment in the state prison for a period of five, seven, or nine years.")

²⁴California Penal Code 12310 PC -- Unlawful explosion or ignition of destructive device or explosive causing death, mayhem or great bodily injury; felony; punishment. ("(a) Every person who willfully and maliciously explodes or ignites any destructive device or any explosive which causes the death of any person is guilty of a felony, and shall be punished by imprisonment in the state prison for life without the possibility of parole. (b) Every person who willfully and maliciously explodes or ignites any destructive device or any explosive which causes mayhem or great bodily injury to any person is guilty of a felony, and shall be punished by imprisonment in the state prison for life.")

²⁵California Penal Code 12312 PC -- Possession of materials with intent to make explosive or destructive device. ("Every person who possesses any substance, material, or any combination of substances or materials, with the intent to make any destructive device or any explosive without first obtaining a valid permit to make such destructive device or explosive, is guilty of a felony, and is punishable by imprisonment in the state prison for two, three, or four years.")

²⁶See endnotes 18-21, 23, and 25, above.

²⁷See endnote 22, above.

²⁸See endnote 24, above.

²⁹Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada’s firearm and weapons laws. Their Nevada law offices are located in Reno and Las Vegas.

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