Godwin

James R. Godwin appeals from judgment entered following a jury trial in which he was convicted of possession of a destructive device *1114 or explosive with the intent to injure, intimidate, or terrify any person or with the intent to wrongfully injure or destroy any property (Pen. Code, § 12303.3). He contends the trial court committed prejudicial instructional error.

Statement of Facts and Procedural History

On February 5, 1990, at approximately 5:20 p.m., Mark Cano was walking in the area of the Mar Vista public library when he heard a very loud explosion. He felt the ground vibrate and believed he felt shrapnel flying around. He looked over to his left side and saw a blue van approximately 45 to 50 feet from him, parked directly behind the library, with smoke coming out of it and defendant stumbling out. Cano walked over to the van, helped defendant to the ground and asked him if he needed help. Defendant had a severe wound on the back of his neck and his arm and did not respond to any questions Cano asked. The inside of the van was smokey and there was a lot of trash and blood, and a hole in the side of the van through which he could see daylight. When Cano looked…

James R. Godwin appeals from judgment entered following a jury trial in which he was convicted of possession of a destructive device or explosive with the intent to injure, intimidate, or terrify any person or with the intent to wrongfully injure or destroy any property (Pen. Code, § 12303.3). He contends the trial court committed prejudicial instructional error.

On February 5, 1990, at approximately 5:20 p.m., Mark Cano was walking in the area of the Mar Vista public library when he heard a very loud explosion. He felt the ground vibrate and believed he felt shrapnel flying around. He looked over to his left side and saw a blue van approximately 45 to 50 feet from him, parked directly behind the library, with smoke coming out of it and defendant stumbling out. Cano walked over to the van, helped defendant to the ground and asked him if he needed help. Defendant had a severe wound on the back of his neck and his arm and did not respond to any questions Cano asked. The inside of the van was smokey and there was a lot of trash and blood, and a hole in the side of the van through which he could see daylight. When Cano looked at the outside of the van, he saw a…

Concurring and Dissenting. — I entirely concur with the analysis and conclusion of the majority that possession of a destructive device with the intent only to harm oneself or one’s own property is not a violation of Penal Code section 12303.3. I further concur that the trial court’s failure to so instruct the jury was prejudicial and requires a reversal of the section 12303.3 conviction. But the reversal should be conditional, not absolute, as ordered by the majority.

By finding appellant guilty of possessing a destructive device with the intent to injure, intimidate or terrify any person (Pen. Code, § 12303.3) the jury necessarily found him guilty of the lesser included offense of possessing a destructive device. (Pen. Code, § 12303; see People v. Morse (1992) 2 Cal.App.4th 620, 648 [ 3 Cal.Rptr.2d 343 ].) The instructional error, prejudicial to the section 12303.3 charge, did not affect the lesser included section 12303 offense.

Therefore the judgment should be conditionally reversed and remanded to the trial court with instructions to either set the matter for retrial or, if the district attorney so elects, to reinstate the conviction of Penal Code section 12303 and conduct…