Penal Code 18720 PC is the California law that makes it a felony to possess materials necessary to make a destructive device. A destructive device is a bomb or other explosive device.1
Now that concern about terrorist acts on American soil is rising, we can expect to see more arrests for this crime in the near future.
Two very interesting points about this section are:
- You can be guilty of this offense even if you did not intend to explode or otherwise use a destructive device; and
- Possessing the materials to make a destructive device actually carries harsher penalties than the related crime of Penal Code 18710 PC possession of a destructive device.2
Legal definition of possession of destructive device materials
The legal definition of possessing destructive device materials under California Penal Code 18720 is as follows:
- You possessed a substance or material or combination of substances and materials; and
- When you possessed those items, you intended to make an explosive or a destructive device.3
Those are the only two elements of the crime of possession of destructive device materials. There is no requirement that you intend to injure any person or property with a destructive device—or even detonate the device at all.4
In this way, possession of a bomb/destructive device is like certain other California “possession” crimes, such as Health & Safety Code 11350 HS possession of a controlled substance5 and Penal Code 29800 PC felon in possession of a firearm.6
Example: Toby is a retired military service member with a personal interest in weapons technology.
Toby decides that he would like to try building a homemade explosive device just to see if he can. He has no intention of using it to harm anyone—though he does think it might be interesting to detonate it in the woods behind his house at some point to see if it works.
Toby buys the materials necessary to make the device from army surplus stores, ammunition stores and agricultural suppliers. The owner of one of these stores gets suspicious and reports Toby to the police, who arrest Toby before he has had a chance to assemble the device.
Toby is guilty of PC 18720 possession of materials to make a bomb.
You are considered to possess a substance or material if you have control over it or the right to control it, either directly or through another person. You do not need to personally hold or touch it.7
Example: Let’s return to Toby from our example above.
Let’s say he doesn’t have the storage space for some of the chemicals he is buying for his planned homemade explosive device, so he asks his sister Stephanie, who has a huge storage shed, if she will store them for him. Stephanie agrees.
So a certain chemical that Toby needs for his device is delivered to Stephanie’s house, and she has the delivery people put it in her shed and lets Toby know it has arrived. Toby is arrested before he even sees that chemical.
Toby is still guilty of possessing materials for a destructive device.
It is important to note that you are not guilty of possession of destructive device/explosive materials under Penal Code 18720 if you had a valid permit to make such a device or explosive.8
Definitions of “destructive device” and “explosive”
A “destructive device” means any of the following weapons:
- Any projectile containing explosive or incendiary material, including the type of ammo known as “ tracer ammunition” (not designed for use in shotguns);
- Any bomb, grenade, explosive missile, or similar device, or any device for launching such a weapon;
- Any weapon greater 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 similar device of a diameter greater than 0.60 inch and/or containing 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 breakable 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, except for devices made primarily as a source of light; and
- Any sealed device containing dry ice or other chemically reactive material that is assembled for the purpose of causing an explosion.9
But “destructive devices” do not include bullets that contain or carry explosive materials.10
An “explosive” means either:
- Any substance or combination of substances whose main or common purpose is to detonate or rapidly combust, AND which is capable of a relatively instantaneous or rapid release of gas and heat; or
- Any substance whose main purpose is to be combined with other substances to create a new substance that can release gas and heat rapidly or relatively instantaneously.11
Examples of explosives include (but are not limited to):
- Fulminate of mercury; and
- Picric acid.12
Penalties for possessing destructive device materials
Possession of materials for making explosives or a destructive device is a California felony.13
The potential penalties are:
- Felony (formal) probation;
- Two (2), three (3) or four (4) years served in county jail under California’s realignment program; and/or
- A fine of up to ten thousand dollars ($10,000).14
According to West Covina criminal defense attorney Neil Shouse:15
“Possession of materials for making a destructive device is a felony—while actually possessing a destructive device is only a California wobbler, which means it can be charged as a felony or a misdemeanor. People are often surprised to learn that possessing destructive device materials is the more serious crime of the two. The reason is that Penal Code 18720 requires an intent to make a new destructive device, whereas California’s possession of a destructive device law only requires you to knowingly possess a device that already exists.”
Legal defenses against PC 18720 charges
The most common legal defense is that you did not intend to use the materials to make an explosive or destructive device.
Just possessing the materials or substances is not enough—the prosecutor needs to be able to show that you actually intended to assemble them into something dangerous.16
Another possible legal defense is that the materials on which your charges are based were found by police during an illegal search or seizure. If the police did not follow proper procedure, then evidence obtained from the illegal search may not be used against you.
Call us for help…
For questions about the crime of Penal Code 18720 PC possessing destructive device materials, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
1 Penal Code 18720 PC – Possession without permit of materials to make destructive device or explosive prohibited; punishment. (“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 that destructive device or explosive, is guilty of a felony, and is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.”) Note that this section is often charged together with California Health & Safety Code 12085 HS, which addresses the making or production of explosives.
2 Same (“(a) Except as provided by this chapter, any person, firm, or corporation who, within this state, possesses any destructive device, other than fixed ammunition of a caliber greater than .60 caliber, is guilty of a public offense. (b) A person, firm, or corporation who is convicted of an offense under subdivision (a) 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 this fine and imprisonment.”)
3 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2579
5 California Jury Instructions – Criminal [CALJIC] 12.00
6 CALJIC 12.43. Felon with a firearm
7 CALCRIM 2579 – Possession of Materials to Make Destructive Device or Explosive (Pen. Code, § 18720).
8 Penal Code 18720 PC – Possession without permit of materials to make destructive device or explosive prohibited; punishment, endnote 1 above.
9 Penal Code 16460 PC. (“(a) As used in Sections 16510, 16520, and 16780, and in Chapter 1 (commencing with Section 18710) of Division 5 of Title 2, “destructive device” includes any of the following weapons: (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 therefor. (3) Any weapon of a caliber greater than 0.60 caliber which fires fixed ammunition, or any ammunition therefor, other than a shotgun (smooth or rifled bore) conforming to the definition of a “destructive device” found in subsection (b) of Section 479.11 of Title 27 of the Code of Federal Regulations, shotgun ammunition (single projectile or shot), antique rifle, or an antique cannon. (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 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, other than a device which is commercially manufactured primarily for the purpose of illumination. (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. (b) A bullet containing or carrying an explosive agent is not a destructive device as that term is used in subdivision (a).”)
11 CALCRIM 2579 – Possession of Materials to Make Destructive Device or Explosive (Pen. Code, § 18720).
See also Penal Code 16510
13 Penal Code 18720 PC – Possession without permit of materials to make destructive device or explosive prohibited; punishment, endnote 1 above.
15 Our West Covina criminal defense attorneys handle the gamut of felony, misdemeanor, and juvenile cases, including crimes like possession of a destructive device or destructive device materials, and represent clients at courthouses throughout the Los Angeles County and San Bernardino County court systems.
16 CALCRIM 2579 – Possession of Materials to Make Destructive Device or Explosive (Pen. Code, § 18720), endnote 3 above.