Gomez, Radford, & Rome, Los Angeles Criminal Defense Attorneys

What is the crime of Possession of Materials to Make a Destructive Device or Explosive?

Penal Code § 18720 is a law that criminalizes the possession of materials that could be used to create a bomb while having the intent to actually do so. To prove that someone is guilty of this crime, the prosecution must prove that the person had the intention to use the materials or substances to create an explosive or destructive device. The prosecutors also must prove that the person charged did not have a permit to make explosive devices (A.K.A.) bombs with them. This charge is a felony in California and convictions can be punished with up to 2, 3, or 4 years in custody. The Law Firm of Gomez, Radford, and Rome has extensive experience defending clients charged with this crime and a proven track record of expertly dealing with these charges.

When would someone be charged under this section?

Someone might be charged with this crime if they are found in possession of explosive materials like gunpowder, nitroglycerin, dynamite, or any other substances that could theoretically be used to make a bomb or other destructive device. The specific intent to create an explosive or destructive device can be inferred from the circumstances surrounding the possession, such as the defendant’s statements, actions, or the presence of other equipment or devices commonly used in making explosives. The law is not limited to any specific materials or substances, but includes any combination of materials that can create an explosive or destructive device. A good attorney like one of the partners at Gomez, Radford, & Rome can help frame the narrative and turn some of these subjective, circumstantial pieces of evidence into a complete dismissal of the charges against you.

It is important to note that mere possession of such materials or substances does not necessarily mean that someone is guilty of this crime. For example, gunpowder is generally legal to own in California. Someone charged who only had gunpowder to load their black powder firearms should not be charged under this statute. To actually convict someone, the prosecution needs to prove beyond a reasonable doubt that the accused intended to use the materials or substances to create an explosive or destructive device, and had control or the right to control the materials or substances at the time of possession. That means that they did not have to have the materials on their person, but that they could be charged if the materials were found in an area under their custody or control, like in their garage or in a shed on their property.

Several cases emphasize the importance of specific intent in relation to charges related to possession of materials to make bombs or destructive devices. For example, in People v. Yoshimura, 62 Cal.App.3d 410 (Cal. Ct. App. 1976), the court held that possession of a substance or material is only criminal if the person has the specific intent to use it to make a destructive device or explosive. Similarly, in People v. Howe, C086341 (Cal. Ct. App. May. 7, 2019), the court noted that the prosecution must prove that the defendant intended to make a destructive device or explosive without a valid permit.

“The possession and the specific intent are not merely coincidental to each other. Innocent possession of a “substance” or “material” is not made punishable under the statute, nor is the mere intent to make a destructive device or explosive forbidden. Rather, possession is criminal conduct only where it is predicated and dependent upon the actor’s specific intent to make that possession an integral step in the construction of an explosive or destructive device.”

People v. Yoshimura, 62 Cal.App.3d 410 (Cal. Ct. App. 1976)

Punishment and Penalties for Violation of Penal Code Section 18720

Possession of Materials to Make a Destructive Device or Explosive is a felony in California. This crime is not a so-called “wobbler” in California, meaning it cannot be reduced to a misdemeanor. The maximum penalty for this crime is 3 years in a California county jail.

Possible Defenses to California Penal Code § 18720

There are several possible defenses that someone charged with this crime could use. The most common defenses would boil down to lack of the requisite intent, lack of actual possession (for example, if someone else actually possessed the items), and having a valid permit. If you’re charged with this crime, you need an attorney who knows the ins and outs of California Criminal Defense to help you navigate the legal process.

Lack of intent: A defendant could argue that they did not possess the materials or substances with the intention of making an explosive or destructive device. Like in the above example, someone could have black powder for their antique firearms collection. Generally speaking, black powder firearms are considered “antique firearms” under California law. They are therefore not subject to normal California regulations related to firearms. Likewise, the propellant/explosive powders used to fire them is not subject to the same regulations that modern ammunition is. A defendant might also claim that they were unaware of the potential use of the materials or substances or explain another legitimate reason for possessing them.

Lack of possession: The defendant could claim that they did not actually possess the materials or substances that were allegedly used to create an explosive or destructive device. They might argue that they did not have control over the materials or substances or that someone else had placed them in the defendant’s possession without their knowledge.

Valid permit: If someone possesses a valid permit to make an explosive or destructive device, they cannot be charged with this crime. The law is very clear on this matter. Take for example a situation where a nosy neighbor reported someone for tinkering with explosives in their garage, unknowingly reporting someone working on special effects for a Hollywood movie. The defense could argue that the defendant had a valid permit and therefore did not unlawfully possess the materials or substances. It is the prosecution’s burden to prove that the defendant did not have a valid permit beyond a reasonable doubt, so if they fail to do so, a good lawyer will get the charges dismissed quickly.

Penal Code Sections Related to P.C. § 18720:

There are several charges related to explosives and Penal Code § 18720 listed in the California Penal Code. For example: