Under California Penal Code § 18720 PC, it is a felony offense to possess materials for the purpose of making a destructive device. A conviction carries a penalty of up to 4 years in prison and a fine of up to $10,000.00. A “destructive device” is a bomb or other explosive.
The language of the code section states that:
18720. 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.
Criminal defense lawyers draw upon several legal strategies to help contest charges under this statute. A few common ones include showing that:
- you did not intend to make a destructive device,
- you had a valid permit to make a destructive device, and/or
- law enforcement conducted an unlawful search and seizure.
The crime is punishable by:
- custody in state prison (as opposed to county jail) for up to four years, and/or
- a maximum fine of $10,000.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is “possession of destructive device materials”?
- 2. Are there legal defenses?
- 3. What are the Penal Code 18720 penalties?
- 4. Are there related offenses?
1. What is “possession of destructive device materials”?
A district attorney must prove the following to convict you under 18720 PC successfully:
- you possessed a substance or material, or a combination of substances and materials, and
- when you possessed those items, you intended to make an explosive or a destructive device.1
You “possess” a substance or material if you have control over it or the right to control it directly or through another party. You do not need to hold or touch a substance to possess it personally.2
What is a destructive device?
For purposes of this statute, a “destructive device” means any of the following weapons:
- any projectile containing explosive material, including the type of ammo known as “ tracer ammunition,”
- 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,
- any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inches,
- 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, or
- any sealed device containing dry ice or other chemically reactive material that is assembled for the purpose of causing an explosion.3
What is considered an explosive?
An “explosive” or explosive device means either:
- any substance or combination of substances whose main 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.4
Examples of explosives include (but are not limited to):
- fulminate of mercury, and
- picric acid.5
Note that the language of PC 18720 specifically states that you are not guilty of this crime if you have a valid permit to make a destructive device.6
2. Are there legal defenses?
Three common defenses to PC 18720 charges include showing that:
- you did not intend to make a destructive device.
- you had a valid permit to make an explosive device.
- a peace officer conducted an unlawful search and seizure.
2.1. You had intent to make a destructive device
You are guilty under this statute only if you possessed destructive device materials with the intent actually to make a device. This means it is always a defense to show that you did not possess explosive device materials with an intent to make a device.
2.2. You had a valid Permit
You are guilty of violating this law only if you possessed destructive device materials and did not have a valid permit to make these devices. A defense, then, is to show that you had a lawful permit.
2.3. It was an unlawful search and seizure
You can challenge a charge under this statute by showing that you were arrested after the police conducted an unlawful search and seizure. Searches and seizures are unlawful when police perform the acts without a valid warrant or a legal excuse for not having one.
If you show that a search and seizure was invalid, then a judge can reduce or drop any criminal charges against you.
3. What are the Penal Code 18720 PC penalties?
A violation of this code section is a serious felony in the State of California.7
The offense is punishable by:
- custody in state prison for up to four years, and/or
- a fine of up to $10,000.8
Note that a judge can award you with felony (or formal) probation instead of prison time.
4. Are there related offenses?
There are three crimes related to possessing destructive device materials. These are:
- possession of a destructive device – PC 18710,
- weapons of mass destruction – PC 11418, and/or
- bullet containing an explosive agent – PC 30210.
4.1. Possession of a destructive device – PC 18710
Per Penal Code 18710 PC, possession of a destructive device is the crime where you possess a “destructive device,” like bombs, grenades, and explosive missiles.
Note that the term “destructive device” under this statute carries the same definition as used in PC 18720.
4.2. Weapons of mass destruction – PC 11418
Per Penal Code 11418 PC, weapons of mass destruction is the crime where you possess, manufacture, or acquire any weapon of mass destruction (WMD).
As with a charge under PC 18720, you can contest a charge under this statute by showing that law enforcement conducted an unlawful search and seizure.
4.3. Bullet containing an explosive agent – PC 30210
Under Penal Code 30210 PC, a bullet containing an explosive device is the crime where you make, import, sell, give, or possess certain types of ammunition or bullets that contain a dart or an explosive agent.
Unlike with violations of PC 18720, prosecutors can charge violations of this law as either misdemeanors or felonies. A felony conviction is punishable by a prison term of up to three years.
- CALCRIM No. 2579 – Possession of Materials to Make Destructive Device or Explosive. Judicial Council of California Criminal Jury Instructions (2020 edition).
- See same. See also People vs Azevedo (1984) 161 Cal.App.3d 235.
- California Penal Code 16460 PC.
- CALCRIM No. 2579. See also California Penal Code 16510 PC.
- See same.
- California Penal Code 18720 PC.
- See same.
- See same. See also California Penal Code 1170 PC.