Penal Code 18710: Possession of a Destructive or Explosive Devices Laws in California

I. PC 18710: Possession of a Destructive or Explosive Devices

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Legal Definition: (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.

To be found guilty under PC 18710 the prosecution must prove that you intentionally:

1. You possessed a destructive device;

2. You knew you possessed it;

AND

3. You knew that what you possessed was a destructive device.

II. What does this mean?

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Destructive Devices can be bombs, grenades, explosive missiles, projectiles, and rocket launchers. Penal Code section 16460(a)(1) states that “destructive device” includes “that which is commonly known as a tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns.” This section does not only criminalize the use of these items, but it also criminalizes simple possession of the devices themselves. Even if you never intend to use the device, simple possession with no further intent, is still a crime here. To have possession of the device requires actual, or constructive possession. Actual possession is of course dealing with you having physical possession of the destructive device. To have constructive possession over the destructive device, does not mean physical possession, but rather you have control over the device. More than one person can “possess” the device at a time.

However, to be convicted under this section, the prosecution must also prove that you had known you possessed a destructive device. Someone leaving a bag at your house with a bomb inside that you decide to keep, but never look at, wouldn’t be a crime here. However, if you open the bag and knew it was a bomb, then you would be guilty of possessing a destructive device.

III. Penalties

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Having possession of a destructive or explosive device is a wobbler offense. This means you can be charged with this crime as a misdemeanor or as a felony offense. Whether you are charged with a felony or a misdemeanor offense is based on the specific facts of your case, as well as your criminal history. If you are convicted of this charge as a misdemeanor offense, you could be sentenced to up to one year in County Jail. If you are convicted of this charge as a felony offense, you could be sentenced to up to 16 months, 2 or 3 years in State Prison. You would be required to serve at least 50% of your time in custody for this offense. You could also be subject to fines upwards of $10,000 for a conviction under this section as a felony. You would also have the device kept by authorities at the end of your case.

There is also the possibility of enhanced punishments under this section as described in PC 18715 if you possess the device maliciously or recklessly in or near:

• A public street or highway,
• Any theater, hall, school, college, church, hotel, or other public building,
• Any private residence,
• Any aircraft, passenger train, car, cable car, or vessel that carries passengers for hire, or
• Any other public place is ordinarily passed by people.

If any of these sections are shown, you could now be sentenced to up to 2, 4, or 6 years in a State Prison. You would be required to serve at least 50% of that time in custody.

This is not a strike offense under the California Three Strikes law, and it is not a Sex Offense under PC 290. You could also face a loss of your Professional License if convicted, and if you are not a legal resident, you would face Deportation in Immigration Court since the offense is deportable, in that it is a crime of using a firearm.  

IV. Common Defenses

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1. Statute of Limitations
2. Violation of Rights
3. Insufficient Evidence

You can defend against a charge under this section if you, for example, have a valid permit to own or possess a destructive or explosive device. If you have a permit to possess the devices, this acts as an affirmative defense to the charge, and it would dismiss your case.

Another common defense can be if the police violated your search, most often this happens through violating your rights against illegal and unlawful searches or seizures. Many times the device is possessed at a person’s home. If the police were to come into your home based on a hunch, with no warrant, or other lawful means without probable cause, then the items seized would be unlawfully taken, and a Court would be required to suppress the evidence of the devices against you. If there is a warrant, however, it is faulty, either lacking specificity of the areas to be searched or with the items to be seized, it could be challenged in Court by your Ontario Criminal Defense Attorney.

V. Call Today

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