Metropolitan News-Enterprise


Friday, December 18, 2009


Page 1


Court Rules Body Armor Law Unconstitutionally Vague


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal yesterday ruled that Penal Code Sec. 12370’s prohibition on a convicted felon’s possession of body armor is void for vagueness.

A divided panel of Div. Three threw out Ethan Saleem’s conviction for being a felon in possession of body armor since Sec. 12370 did not provide fair notice as to which protective body vests constitute the body armor made illegal by the statute.

While on patrol in Wilmington, Los Angeles Police Officer Jeffrey Rivera encountered Saleem, who was on parole for a prior voluntary manslaughter conviction, during the early morning hours of Jan. 23, 2007 wearing a camouflage-patterned vest labeled “body armor.”

Rivera testified that the vest weighed about 10 pounds and was similar to the “ballistic” or “bullet-proof” vests Rivera had worn while he was deployed in Iraq with the Marines.

During his time in the military, Rivera testified that he had participated in the testing of flak jackets similar to Saleem’s body vest and, based on that experience, opined that Saleem’s vest would protect against pistol rounds.

After a trial before Los Angeles Superior Court Judge John David Lord, Saleem was convicted of violating Sec. 12370, which outlaws the possession of body armor by a person previously convicted of a violent felony.

In defining body armor, the statute references the California Code of Regulations’ detailed specifications for the minimum technical standards for the certification of body armor purchased for law enforcement personnel.

Writing for the appellate court, Justice Joan Dempsey Klein rejected Saleem’s argument that his conviction had to be set aside because a violation of Sec. 12370 required evidence that the protective body vest in question be certified as body armor under the testifying regimen specified by the Code of Regulations, and the prosecution had presented no evidence as to the certification of his vest.

She reasoned that such a construction would frustrate the purpose of the legislation by permitting a criminal to avoid the proscription of the statute by using uncertified body armor.

“All the statute requires is that the defendant’s protective body vest meets the certification standards,” Klein said.

But, while prior certification of a body vest and testing pursuant to the technical specifications contained in the Code of Regulations were not elements of the criminal offense, Klein concluded that a necessary element of a violation of Sec. 12370 was either actual knowledge of, or negligence with regard to, the facts making possession of a particular body vest illegal under the statute.

Klein posited that the Legislature’s decision to categorize violation of Sec. 12370 as a felony, and prescribe significant prison terms upon conviction, reinforced the presumption against criminal liability without mental fault or negligence.

Crimes involving possession of a prohibited item typically require knowledge of possession as well as knowledge of the characteristics of that item which make it illegal to possess, the justice said.

“Given the detailed technical specifications spelled out in the Code of Regulations, and specifically referenced by section 12370, the proscribed body armor must be some subset of the category ‘garments popularly called bulletproof vests,’ ” Klein reasoned.

She also noted that there was already a California law defining bulletproof vests— Sec. 12022.2—when Sec. 12370 was enacted, and so the Legislature’s decision to reference the Code of Regulations to define body armor indicated a deliberate choice to create a different standard for body armor in Sec. 12370.

The constitutional issue, Klein explained, is whether a person of ordinary intelligence would have any reasonable way of knowing if a particular vest met the more stringent requirements necessary to qualify as body armor under Sec.12370, regardless of whether he knew that garment qualified as a bulletproof vest under Sec. 12022.2.

As the Legislature specifically crafted Sec. 12370 to incorporate the technical definition of body armor contained in the Code of Regulations and the Regulations’ technical definition entailed a rigorous testing regimen requiring the use of sophisticated testing facilities to establish that a particular body vest will protect against specified test ammunition, Klein concluded that even if Saleem had read the statute and the Regulations, he could not have reasonably ascertained his vest possessed the characteristics making it illegal

“This failure to provide fair notice is exactly what offends due process,” she said.

Justice H. Walter Croskey joined Klein, but Justice Richard D. Aldrich disagreed.

Aldrich insisted that first line of Title 11 of the California Code of Regulations, Sec. 942(e), which states that body armor is “popularly called a ‘bulletproof vest’ ” defined body armor sufficiently to give ordinary persons notice of what if prohibited.

He said there was “no reason to assume that the Legislature intended that a defendant’s knowledge of the technical specifications of his or her body armor is an element of Penal Code section 12370” opining that “[i]t is enough that a violent felon knows he or she possesses a bulletproof vest or body armor, as those terms are popularly understood.”

As it “would be a rare case in which the People could prove the violent felon’s knowledge of the technical aspects of his or her body armor” and “[p]resumably, the Legislature did not intend to exempt persons convicted of violent felonies from the statute’s purview merely because they failed to acquaint themselves with the garment’s salient characteristics,” Aldrich argued that the majority’s ruling was contrary to the Legislature’s intent in enacting Sec. 12370.

Attorneys on appeal were Gerald Peters, by appointment, for the defendant and Deputy Attorneys General Lance E. Winters and Roberta L. Davis for the prosecution.

The case is People v. Saleem, 09 S.O.S. 7083.


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