California Penal Code § 11418 states that “any person, without lawful authority, who possesses, develops, manufactures, produces, transfers, acquires, or retains any weapon of mass destruction, shall be [guilty of a crime].” This offense is a felony punishable by up to 12 years in jail or prison.
Penal Code 11417 PC defines a WMD:
(1) “Weapon of mass destruction” includes chemical warfare agents, weaponized biological or biologic warfare agents, restricted biological agents, nuclear agents, radiological agents, or the intentional release of industrial agents as a weapon, or an aircraft, vessel, or vehicle, as described in Section 34500 of the Vehicle Code, which is used as a destructive weapon.
Examples
- making biological weapons,
- possessing chemical weapons, or
- acquiring an aircraft to use it as a destructive weapon.
Defenses
You can raise a legal defense to challenge an allegation under this statute. Some defenses include showing that:
- you did not have or make a “WMD,”
- you had “lawful authority” to have the weapon, and/or
- you were arrested after an unlawful search and seizure.
Penalties
A violation of this law is a felony. This is opposed to a California misdemeanor or an infraction.
The offense is punishable by:
- custody in county jail for up to 12 years, or
- felony (or formal) probation.
Our California criminal defense attorneys will explain the following in this article:
- 1. What is California’s law as to weapons of mass destruction?
- 2. Are there defenses to a 11418 PC charge?
- 3. What is the prison sentence?
- 4. Are there related offenses?
Building a bomb can be punished under Penal Code 11418 PC.
1. What is California’s law as to weapons of mass destruction?
Penal Code 11418 makes the following acts a crime when done with a WMD:
- possession,
- development,
- manufacturing,
- production,
- transferring,
- acquisition, or
- retention.1
The above are illegal acts unless you had the lawful authority to perform one.2
What qualifies as a weapon of mass destruction?
Weapons of mass destruction include:
- chemical warfare agents,
- weaponized biological or biologic warfare agents,
- restricted biological agents,
- nuclear agents,
- radiological agents, and
- any aircraft, vessel, or vehicle if used as a destructive weapon.3
2. Are there defenses to a 11418 PC charge?
Here at Shouse Law Group, we have represented literally thousands of people charged with weapons offenses. In our experience, the most effective defenses to PC 11418 charges are to show that:
- There was no weapon of mass destruction;
- You had lawful authority to have the weapon; or
- The police committed an unlawful search and seizure
2.1. There was no weapon of mass destruction
This code section only applies to weapons of mass destruction. Further, these weapons have a precise technical meaning under California law. This means that it is always a defense to say that:
- you may have performed some act with an object, but
- it was not a weapon of mass destruction.
In these cases, we can hire a weapons expert to give testimony that the object in question does not meet the technical definition of a WMD.
2.2. You had lawful authority to have the weapon
This statute states that you are not guilty if you had “lawful authority” to have a WMD. It is a defense, therefore, to say you had the legal authority to act with such a weapon.
This defense typically applies if you were:
- a member of a federal government agency,
- a member of a state government agency, or
- an elected official (depending on the office).
2.3. The police committed an unlawful search and seizure
Authorities cannot conduct a search or take property without a valid search warrant. If no warrant, then they must have a legal excuse for not having one.
If the police in your case committed an unlawful search, we can ask the court to exclude any evidence they found – including evidence of a WMD – from your case. If we succeed, the D.A may be left with too little evidence to continue prosecuting.
To prove that a search was unlawful, we rely on such evidence as the search warrant itself (if there was one), video surveillance video, police body/dash cam video, and eyewitness testimony of the search.
A violation of this law can result in a 12-year prison sentence.
3. What is the prison sentence?
A violation of this statute is a felony. The crime is punishable by custody in jail or prison for up to 12 years.
A judge may grant felony (or formal) probation in lieu of jail time.
Note that PC 11418b1 also makes it a crime to:
- use or employ a weapon of mass destruction, and
- do so against another person in a way that causes widespread illness or injury.4
A violation of this law can lead to imprisonment in the state prison for life.
4. Are there related offenses?
There are three crimes related to performing a prohibited act with a WMD. These are:
- violating a California law on assault weapons and rifles – PC 30600,
- possession of an assault weapon – PC 30605, and
- possession of a destructive device – PC 18710
4.1. Laws on assault weapons and rifles – PC 30600
Penal Code 30600 PC is the California statute that makes it a crime to:
- make or sell a weapon, and
- do so when that weapon is an assault weapon.
You are guilty under this law only if you:
- performed an illegal act knowingly, and
- knew or should have known that the weapon was an assault weapon or .50 BMG rifle.
4.2. Possession of an assault weapon – PC 30605
Penal Code 30605 PC makes it a crime to possess an assault weapon.
California law defines “possession” as having control of an item. Possession of an item can be either:
- actual possession (for example, physical control over an item), or
- constructive possession (for example, the ability to exercise control over an item without having physical custody of it).
4.3. Possession of a destructive device – PC 18710
Penal Code 18710 PC is the statute that makes it a crime to possess a “destructive device.”
“Destructive devices” include things like:
- bombs,
- grenades,
- explosive missiles,
- projectiles containing incendiary material, and
- certain types of rockets or rocket-propelled projectiles.
Legal References:
- California Penal Code 11418 PC. The full language of the code section reads as follows:
11418. (a)(1) Any person, without lawful authority, who possesses, develops, manufactures, produces, transfers, acquires, or retains any weapon of mass destruction, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for 4, 8, or 12 years. (2) Any person who commits a violation of paragraph (1) and who has been previously convicted of Section 11411, 11412, 11413, 11418, 11418.1, 11418.5, 11419, 11460, 18715, 18725, or 18740 shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for 5, 10, or 15 years. (b) (1) Any person who uses or directly employs against another person a weapon of mass destruction in a form that may cause widespread, disabling illness or injury in human beings shall be punished by imprisonment in the state prison for life. (2) Any person who uses or directly employs against another person a weapon of mass destruction in a form that may cause widespread great bodily injury or death and causes the death of any human being shall be punished by imprisonment in the state prison for life without the possibility of parole. Nothing in this paragraph shall prevent punishment instead under Section 190.2. (3) Any person who uses a weapon of mass destruction in a form that may cause widespread damage to or disruption of the food supply or “source of drinking water” as defined in subdivision (d) of Section 25249.11 of the Health and Safety Code shall be punished by imprisonment in the state prison for 5, 8, or 12 years and by a fine of not more than one hundred thousand dollars ($100,000). (4) Any person who maliciously uses against animals, crops, or seed and seed stock, a weapon of mass destruction in a form that may cause widespread damage to or substantial diminution in the value of stock animals or crops, including seeds used for crops or product of the crops, shall be punished by imprisonment in the state prison for 4, 8, or 12 years and by a fine of not more than one hundred thousand dollars ($100,000). (c) Any person who uses a weapon of mass destruction in a form that may cause widespread and significant damage to public natural resources, including coastal waterways and beaches, public parkland, surface waters, ground water, and wildlife, shall be punished by imprisonment in the state prison for three, four, or six years. (d) (1) Any person who uses recombinant technology or any other biological advance to create new pathogens or more virulent forms of existing pathogens for use in any crime described in subdivision (b) shall be punished by imprisonment in the state prison for 4, 8, or 12 years and by a fine of not more than two hundred fifty thousand dollars ($250,000). (2) Any person who uses recombinant technology or any other biological advance to create new pathogens or more virulent forms of existing pathogens for use in any crime described in subdivision (c) shall be punished by imprisonment in the state prison for three, six, or nine years and by a fine of not more than two hundred fifty thousand dollars ($250,000). (e) Nothing in this section shall be construed to prevent punishment instead pursuant to any other provision of law that imposes a greater or more severe punishment.
- See same. See also People v. Turnage (Cal. 2012) 281 P.3d 464.
- California Penal Code 11417.
- California Penal Code 11418b1.