BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

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          SB 408 (Padilla)                                            
          As Amended January 13, 2010 
          Hearing date:  January 19, 2010
          Penal Code (URGENCY)
          SM:mc


                      BODY ARMOR: POSSESSION BY SPECIFIED FELONS  

                                       HISTORY


          Source:  Los Angeles County District Attorney; San Francisco  
          County District Attorney

          Prior Legislation: AB 960 (V. Manuel Perez) (2009) - pending,  
          Senate Public Safety
                       AB 1707 (Wildman) - Chap. 297, Stats. of 1998

          Support:  Association for Los Angeles Deputy Sheriffs;  
                    California District Attorneys Association; California  
                    Narcotic Officers Association; California Peace  
                    Officers' Association; California Police Chiefs  
                    Association; California State Sheriffs' Association;  
                    California Statewide Law Enforcement Association; Los  
                    Angeles County Board of Supervisors; Riverside  
                    Sheriffs' Association; San Diego District Attorney;  
                    Attorney General; San Bernardino County Sheriff; Peace  
                    Officers Research Association of California (PORAC)

          Opposition:None known






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                                                           SB 408 (Padilla)
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                                        KEY ISSUE
           
          SHOULD THE DEFINITION OF BODY ARMOR THAT A PERSON WITH A PRIOR  
          VIOLENT FELONY CONVICTION IS PROHIBITED FROM POSSESSING BE AMENDED  
          TO PROVIDE THAT SUCH BODY ARMOR INCLUDES "ANY BULLET-RESISTANT  
          MATERIAL INTENDED TO PROVIDE BALLISTIC AND TRAUMA PROTECTION FOR THE  
          PERSON WEARING THE BODY ARMOR?" 



                                       PURPOSE

          The purpose of this bill is to redefine "body armor" as "any  
          bullet-resistant material intended to provide ballistic and  
          trauma protection for the person wearing the body armor," for  
          purposes of the prohibition on possession of body armor by  
          persons convicted of a violent felony.

           Current law  provides that any person who wears a body vest in  
          the commission or attempted commission of a violent offense, as  
          defined, shall, in addition and consecutive to the punishment  
          prescribed for the felony or attempted felony of which he or she  
          has been convicted, be punished by an additional term of one,  
          two, or five years.  For purposes of this statute, "body vest"  
          means any bullet-resistant material intended to provide  
          ballistic and trauma protection for the wearer.  (Penal Code   
          12022.2(b) and (c).)


           Current statute  provides that any person who has been convicted  
          of a violent felony, as defined, under the laws of the United  
          States, the State of California, or any other state, government,  
          or country, who purchases, owns, or possesses body armor, as  
          defined by Section 942 of Title 11 of the California Code of  
          Regulations, except as specified below, is guilty of a felony,  
          punishable by imprisonment in a state prison for 16 months, or  
          two or three years.  (Penal Code  12370(a).)






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           Current statute  states that any person whose employment,  
          livelihood, or safety is dependent on the ability to legally  
          possess and use body armor, who is subject to the prohibition on  
          possession of body armor due to a prior violent felony  
          conviction, may file a petition with the chief of police or  
          county sheriff of the jurisdiction in which he or she seeks to  
          possess and use the body armor for an exception to this  
          prohibition.  The chief of police or sheriff may reduce or  
          eliminate the prohibition, impose conditions on reduction or  
          elimination of the prohibition, or otherwise grant relief from  
          the prohibition as he or she deems appropriate, based on the  
          following:


                 A finding that the petitioner is likely to use body  
               armor in a safe and lawful manner.


                 A finding that the petitioner has a reasonable need for  
               this type of protection under the circumstances.


          In making its decision, the chief of police or sheriff shall  
          consider the petitioner's continued employment, the interests of  
          justice, any relevant evidence, and the totality of the  
          circumstances. It is the intent of the Legislature that law  
          enforcement officials exercise broad discretion in fashioning  
          appropriate relief under this paragraph in cases in which relief  
          is warranted.  However, this paragraph may not be construed to  
          require law enforcement officials to grant relief to any  
          particular petitioner.  Relief from this prohibition does not  
          relieve any other person or entity from any liability that might  
          otherwise be imposed.  (Penal Code  12370(a).)


           Current statute  defines "body armor," for purposes of section  
          12370, as "those parts of a complete armor that provide  
          ballistic resistance to the penetration of the test ammunition  
          for which a complete armor is certified."  (Title 11 California  
          Code of Regulations  942.)




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           Current law  requires that before any body armor may be purchased  
          for use by state peace officers the Department of Justice, after  
          consultation with the Department of the California Highway  
          Patrol, shall establish minimum ballistic performance standards,  
          and shall determine that the armor satisfies those standards.   
          Only body armor that meets state requirements for acquisition or  
          purchase shall be eligible for testing for certification under  
          the ballistic performance standards established by the  
          Department of Justice; and only body armor that is certified as  
          acceptable by the department shall be purchased for use by state  
          peace officers.  (Penal Code  12361.)

           Current federal law  prohibits a person who has been convicted of  
          a crime of violence from possessing body armor.  Similar to  
          California's section 12370, federal law states that it is an  
          affirmative defense to prove that the defendant had obtained  
          prior written certification from his or her employer, as  
          defined, that the defendant's purchase, use, or possession of  
          body armor was necessary for the safe performance of lawful  
          business activity; and the use and possession by the defendant  
          were limited to the course of such performance.  (18 USC  931.)

           Current federal law  defines "body armor, for purposes of the  
          above prohibition as, "any product sold or offered for sale, in  
          interstate or foreign commerce, as personal protective body  
          covering intended to protect against gunfire, regardless of  
          whether the product is to be worn alone or is sold as a  
          complement to another product or garment."  (18 USC  921.)

           This bill  deletes the reference in section 12370(a) to the  
          California Code of Regulations Title 11 Section 94 as the  
          definition of "body armor." 

           This bill  instead defines "body armor" as "any bullet-resistant  
          material intended to provide ballistic and trauma protection for  
          the person wearing the body armor."
          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          




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          California continues to face a severe prison overcrowding  
          crisis.  The Department of Corrections and Rehabilitation (CDCR)  
          currently has about 170,000 inmates under its jurisdiction.  Due  
          to a lack of traditional housing space available, the department  
          houses roughly 15,000 inmates in gyms and dayrooms.   
          California's prison population has increased by 125% (an average  
          of 4% annually) over the past 20 years, growing from 76,000  
          inmates to 171,000 inmates, far outpacing the state's population  
          growth rate for the age cohort with the highest risk of  
          incarceration.<1>

          In December of 2006 plaintiffs in two federal lawsuits against  
          CDCR sought a court-ordered limit on the prison population  
          pursuant to the federal Prison Litigation Reform Act.  On  
          February 9, 2009, the three-judge federal court panel issued a  
          tentative ruling that included the following conclusions with  
          respect to overcrowding:

               No party contests that California's prisons are  
               overcrowded, however measured, and whether considered  
               in comparison to prisons in other states or jails  
               within this state.  There are simply too many  
               prisoners for the existing capacity.  The Governor,  
               the principal defendant, declared a state of emergency  
               in 2006 because of the "severe overcrowding" in  
               California's prisons, which has caused "substantial  
               risk to the health and safety of the men and women who  
               work inside these prisons and the inmates housed in  
               them."  . . .  A state appellate court upheld the  
               Governor's proclamation, holding that the evidence  
               supported the existence of conditions of "extreme  
               peril to the safety of persons and property."  
               (citation omitted)  The Governor's declaration of the  
               ----------------------
          <1>  "Between 1987 and 2007, California's population of ages 15  
          through 44 - the age cohort with the highest risk for  
          incarceration - grew by an average of less than 1% annually,  
          which is a pace much slower than the growth in prison  
          admissions."  (2009-2010 Budget Analysis Series, Judicial and  
          Criminal Justice, Legislative Analyst's Office (January 30,  
          2009).)



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               state of emergency remains in effect to this day.

               . . .  the evidence is compelling that there is no  
               relief other than a prisoner release order that will  
               remedy the unconstitutional prison conditions.

               . . .

               Although the evidence may be less than perfectly  
               clear, it appears to the Court that in order to  
               alleviate the constitutional violations California's  
               inmate population must be reduced to at most 120% to  
               145% of design capacity, with some institutions or  
               clinical programs at or below 100%.  We caution the  
               parties, however, that these are not firm figures and  
               that the Court reserves the right - until its final  
               ruling - to determine that a higher or lower figure is  
               appropriate in general or in particular types of  
               facilities.

               . . .

               Under the PLRA, any prisoner release order that we  
               issue will be narrowly drawn, extend no further than  
               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               correct the violation of those rights.  For this  
               reason, it is our present intention to adopt an order  
               requiring the State to develop a plan to reduce the  
               prison population to 120% or 145% of the prison's  
               design capacity (or somewhere in between) within a  
               period of two or three years.<2>

          The final outcome of the panel's decision, as well as any appeal  
          ---------------------------
          <2>  Three Judge Court Tentative Ruling, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (Feb. 9, 2009).



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          that may be in response to the panel's recent final decision, is  
          unknown at the time of this writing.

           This bill  does appear to aggravate the prison overcrowding  
          crisis outlined above.


                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               The James Guelff Act was signed into law in 1998.   
               This critically important public safety measure  
               prohibited violent felons from possessing body armor.
               Passage of this law followed two horrific incidents:

               San Francisco police officer James Guelff was killed  
               in 1994 during a gun battle with a car-jacking suspect  
               wearing full body armor.  At the end of a 32- minute  
               gun battle involving 120 officers, the suspect was  
               finally killed by a San Francisco Police Department  
               sniper. 

               In 1997, in North Hollywood, two bank robbers covered  
               from head to toe in body armor were able to engage 350  
               LAPD officers in an hour long gun battle.  The body  
               armor the robbers were using could not be penetrated  
               by the officers' handguns and shotguns.  The bullets  
               simply bounced off of the body armor.  It was not  
               until additional officers arrived with higher caliber  
               guns that the suspects were finally stopped.   
               Tragically, 11 police officers and 6 civilians were  
               wounded.

               On December 17th, 2009 the California Second District  
               Court of Appeals ruled that the James Guelff Act was  
               unconstitutionally vague.  They stated that the  
               definition of body armor in the law was too confusing  




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               for the average citizen to understand.   

               SB 408 addresses the decision of the court by  
               clarifying the definition of body armor.  The language  
               in the bill is the same as the definition used the  
               section 12022.2 (b) of the Penal Code.

               I'm carrying SB 408 to once again make it illegal for  
               violent felons to own bullet-proof vests and body  
               armor.  This bill has strong support throughout the  
               law enforcement community who believe that this is a  
               significant tool in protecting the safety of peace  
               officers in the line of duty.

          2.  Redefining Body Armor
           
          Under current law, any person who has been convicted of a  
          violent felony is prohibited from owning or possessing body  
          armor.  (Penal Code  12370(a).)  "Body armor" is defined in  
          that statute by reference to Title 11 of the California Code of  
          Regulations, section 942.  That definition reads, "those parts  
          of a complete armor that provide ballistic resistance to the  
          penetration of the test ammunition for which a complete armor is  
          certified."  

          A similar statute also prohibits wearing a "body vest" in the  
          commission or attempted commission of a violent offense.  (Penal  
          Code  12022.2(b) and (c).)  That statute, by contrast, defines  
          a "body vest" as, "any bullet-resistant material intended to  
          provide ballistic and trauma protection for the wearer."  














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          This bill would change the definition of "body armor" contained  
          in section 12370 to conform to the definition of "body vest"  
          contained in section 12022.2.  

          3.  Section 12370 Has Been Found Unconstitutional  

          On December 17, 2009, the 2d District Court of Appeal held in  
          People v. Saleem, 180 Cal.App.4th 254 (2009) that Penal Code  
          section 12370 is unconstitutionally vague, and this statute is,  
          therefore, invalid at this time unless or until a higher court  
          stays or overturns that decision.  The basis of the decision was  
          that "? only an expert would know if any particular protective  
          body vest was proscribed by section 12370."  (Saleem, supra.)   
          This bill comes in response to the Saleem decision and is  
          intended to reinstate the prohibition on violent felons owning  
          body armor.

          4.   Certified Body Armor  

          Penal Code sections 12360, et seq. require that before any body  
          armor is provided to peace officers in California, it must be  
          certified by the Department of Justice as meeting certain  
          standards.  The definition of body armor contained in the Code  
          of Regulations is part of the regulatory scheme which implements  
          the certification requirements set forth in Penal Code sections  
          12360, et seq.  By utilizing this definition section 12370(a)  
          therefore prohibited persons with violent felony convictions  
          from possessing law enforcement grade body armor but not all  
          material that might be considered by a lay person as body armor.  
           As the Court stated in Saleem:

            [] the body armor proscribed by section 12370 is not just any  
            garment popularly known as a bulletproof vest.  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.  (People v.  
            Saleem, supra.)





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          Therefore, redefining "body armor" in section 12370(a) as "any  
          bullet-resistant material intended to provide ballistic and  
          trauma protection for the person wearing the body armor," as  
          this bill proposes, would broaden the definition of what is  
          illegal to possess if you are a person with a violent felony  
          conviction beyond that which was prohibited by section 12370.  


          5.  Existing Federal Law Prohibits This Conduct  

          As noted above, apart from the statute this bill seeks to  
          reinstate, wearing body armor in the commission or attempted  
          commission of a violent crime subjects the wearer to a sentence  
          enhancement of an additional 1, 2, or 5 years in prison.  (Penal  
          Code  12022.2.)  The subject of this bill is the possession of  
          body armor by a person with a violent felony conviction, apart  
          from its use to commit a crime.  Although the California statute  
          which prohibits possession of body armor by these felons is  
          currently invalid, the same conduct is still prohibited under  
          federal law.  (18 USC  931.)  The penalty is up to three years  
          in federal prison.  (18 USC  924(a)(7).)


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