Information on the crime of Possession of a Destructive Device is found at California Penal Code Section 18710 (PC 18710).
Per PC 18710(a), any person or corporation that possesses any destructive device, other than fixed ammunition of a caliber greater than .60 caliber, is guilty of the crime of possession of a destructive device (PC 18710(a) Abbrev.).
A destructive device includes, but is not limited to, a bomb, a hand grenade, a flame thrower, a Molotov cocktail, a land mine, a rocket launcher, and more.
To possess a destructive device means to have actual or constructive possession. Actual possession of a destructive device means that the device is on the person’s body or within their immediate area and control. Constructive possession means the defendant has control of the destructive device.
Examples: Per Penal code 18710, actual possession of a hand grenade would occur where the defendant keeps the device in a backpack that he is wearing; constructive possession of a hand grenade would occur where the defendant keeps a hand grenade in his backpack, but he is not currently near his backpack.
Also, per PC 18710, possession of must be knowing possession in order to find the defendant guilty.
Example: David’s ex-girlfriend, Lisa, buy a hand grenade without David’s knowledge and places the hand grenade in the trunk of David’s vehicle. Lisa then calls the police to report David’s possession of the hand grenade so that David will get in trouble with the law. David does not know that the hand grenade is in his vehicle when law enforcement pulls him over based on Lisa’s report. Result: David is not guilty of PC 18710 because he did not have knowing possession of the hand grenade.
PC 18710(a) Punishment: Possession of destructive device is considered a “wobbler” crime in California. A “wobbler” crime is a public offense that may be charged either as a felony, or alternatively as a misdemeanor. Whether the district attorney levies felony or misdemeanor PC 18710 charges depends largely on the circumstances of the case, the defendant’s criminal history, and more.
Note: PC 18715(a) requires felony charges of possession of a destructive device, with a maximum prison term of up to six (6) years. PC 18715 is charged when the defendant possesses the destructive device in any of the following areas:
On a public street or highway (PC 18715(a)(1)).
In or near any theater, hall, school, college, church, hotel, or other public building (PC 18715(a)(2)).
In or near any private habitation (PC 18715(a)(3)).
In, on, or near any aircraft, railway passenger train, car, cable road, cable car, or vessel engaged in carrying passengers for hire (PC 18715(a)(4)).
In, on, or near any other public place ordinarily passed by human beings (PC 18715(a)(5)).
Felony Prison Sentence: If found guilty of PC 18710(a)-F, felony possess destructive device, the defendant may face up to three years in a California state prison. The defendant may receive up to fifty percent (50%) time reduction off his or her prison sentence for good behavior while in prison.
Misdemeanor Jail Sentence: If found guilty of PC18710(a)-M, misdemeanor possess destructive device, the defendant may face up to one (1) year in the county jail. The defendant may receive up to fifty percent (50%) time reduction off his or her prison sentence for good behavior while in jail.
Note: A misdemeanor jail sentence may usually, but not always, be served alternatively on work release or house arrest. See Work Release.
Probation Sentence: A probation sentence is a period of supervision, as opposed to an actual prison or jail sentence. A probation sentence carries “terms of probation” that must be followed in order to remain on a probation sentence. Probation sentences are available in PC 18710 cases, but a probation sentence in lieu of actual incarceration is not guaranteed. Whether a defendant receives a probation sentence in any possession of a destructive device case depends on many factors, including the defendant’s criminal history, the facts of the case, and more.
Note: If the defendant is sentenced to prison after a conviction of penal code 18710(a), then no part of that prison sentence may neither be split (served partially out of prison on work release), nor suspended (not served).
Fines: Per PC 18710(b), any person, firm, or corporation, who is conviction of any possession of a destructive device under PC 18710(a), may receive up to a ten thousand dollar ($10,000) fine. This fine is in addition to any restitution that is ordered, or any court security fines levied against the defendant. This fine is also in addition to any fees associated with probation monitoring (if applicable), and any civil lawsuit that the defendant may suffer as a result of PC 18710 charges.
Firearm Restriction: If found guilty of PC 18710(a), the defendant will lose his or her right to own or possess firearms or firearm ammunition. Felony PC 18710 convictions carry lifelong firearm restrictions, misdemeanor PC 18710 convictions carry ten (10) year firearm restrictions.
Other PC 18710 Penalties: In addition to the penalties listed above, if found guilty of the possession of a destructive device, the defendant may face any or all of the following addition direct and indirect penalties: immigration consequences, professional licensing consequences, civil lawsuits, military service consequences, loss of school scholarships, criminal protective orders (restraining orders), enhanced penalties for future criminal convictions, and more.
PC 18710 Defenses
Every posses destructive device case is different; therefore, the defense to any charge of PC 18710 must be uniquely crafted to meet the specific allegation(s). With that said, the most common defenses to penal code 18710 crimes include, statute of limitations (3 years for felony PC 18710 charges, 1 year for misdemeanor PC 18710 charges), coerced confessions, illegal search and seizure, entrapment, fleeting possession (See below), self-defense, defense of others, insanity, duress, insufficient evidence, and more.
Fleeting Possession: In some cases, a person can take knowing possession of a device, but that possession is “fleeting,” and thereby, not qualifying as actual or constructive possession.
For example, is a defendant is handed a hand grenade, and the defendant holds the hand grenade for only a second before he returns the hand grenade back to the person who gave it to him, then defendant might have had only “fleeting” possession of the hand grenade. Essentially, fleeting possession is insufficient time to exert dominion and control over the device.
Note: Some persons and agencies are exempt from PC 18710, such as active military or law enforcement personnel who possess a destructive device within the scope of their official duties.
Post-Conviction Issues: If the defendant is found guilty, or pleads guilty or “no contest” to PC 18710(a) charges, then he or she might have any of the following post-conviction options: Appeal the criminal conviction, withdraw his or her guilty plea (PC 1018), petition the court for early termination of probation (PC 1203.3), petition the court to expunge the criminal conviction (PC 1203.4), petition the court to set aside a criminal protective order (PC 1203.3), and more.
Seal & Destroy PC 18710 Arrest Record: In PC 18710 cases, where the defendant is arrested, but he or she is never criminal prosecuted for some reason (i.e., insufficient evidence to prosecute), or where the defendant is prosecuted but the defendant is found not guilty or the charges are dismissed for some reason (insufficient evidence, illegal search and seizure, etc.), the defendant may petition the court to have his or her arrest or citation removed from public records (PC 851).
PC 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 possession of a destructive device, and subject to up to four years in county jail (PC 18720 Abbrev.).
PC 18730: Except as provided by this chapter, 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, is guilty of a felony and is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
PC 18735(a): Carrying fixed ammunition with a caliber greater than .60 is a public offense (PC 18735(a) Abbrev.).
PC 18740: 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 for a period of three, five, or seven years (PC 18740 Abbrev.).
PC 18745: 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.
PC 18750: Every person who willfully and maliciously explodes or ignites any destructive device or any explosive that 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.
PC 18755(b): Every person who willfully and maliciously explodes or ignites any destructive device or any explosive that 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 (PC 18755(B) Abbrev.).
For more information on the crime of possession of a destructive device, or penal code 18710, contact our criminal defense attorney today for a free consultation. Our criminal defense attorneys are available seven days a week to assist you. In some cases, we can visit local county jail to assist with consultations (West Valley Jail, Central Detention Center).
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