BILL ANALYSIS Senate Appropriations Committee Fiscal Summary Senator Christine Kehoe, Chair 408 (Padilla) Hearing Date: 01/21/2009 Amended: 01/13/2009 Consultant: Jacqueline Wong-HernandezPolicy Vote: Public Safety 7-0 _________________________________________________________________ ____ BILL SUMMARY: SB 408 redefines "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. This bill contains an urgency clause. _________________________________________________________________ ____ Fiscal Impact (in thousands) Major Provisions 2010-11 2011-12 2012-13 Fund Allows felony conviction up to $92 up to $92 up to $92 General for body armor possession _________________________________________________________________ ____ STAFF COMMENTS: SUSPENSE FILE 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, with certain specific exceptions, is guilty of a felony, punishable by imprisonment in a state prison for 16 months, or two or three years. (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.) The prohibited possession of body armor has been enforced and prosecuted as a felony, since being signed into law in 1998. On December 17, 2009, however, the 2nd 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 People v.Saleem decision and is intended to reinstate the prohibition on violent felons owning body armor. 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" and, instead, defines "body armor" as "any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor." This definition would be sufficiently clear as to be constitutional, and the previous law could be enforced. In the absence of this definition change, the statutory felony cannot be enforced. Page 2 SB 408 (Padilla) The general fund costs projected in the Fiscal Impact are incarceration costs associated with this felony. There are only eight inmates in state prison serving sentences for prohibited possession of body armor. There are several variables that effect the cost projection, and they considerations in the cost projection are detailed below. Since 1998, Los Angeles County has convicted approximately 3 individuals each year of felonies for violating section 12370(a). It is unknown the extent to which other crimes were also charged, and the single conviction was the result of a plea bargain. Approximately 40% of state prison inmates are committed from Los Angeles County, across all felonies. If that holds true for this crime, the state can expect approximately 7 convictions per year. If the individuals convicted, are also convicted of other felonies at the same time, the judge may decide the inmate will serve the sentences consecutively or concurrently. The statute does not require that they be consecutive sentences. To the extent that the sentences are served concurrently, incarceration costs would be mitigated if they are serving time they would be serving anyway for the additional crime(s). Moreover, even if a judge decides that sentencing will be consecutive, the judge may determine that only a certain percentage of the base will be served, instead of a higher penalty within the judge's discretion, because it is not the sole offense. Further possible mitigation of costs comes from the ability to prosecute the same individuals under a different statue, if they are also being charged with another violent felony at the same time. 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).) If an individual prohibited from owning body armor, commits another violent crime while wearing body armor, he or she can be tried under this statute. This statute specifies that the sentences must be served consecutively. To the extent that violation of section 12370, which carries both a lesser sentence and the ability to serve it concurrently, reduces the ability to plea bargain a conviction under section 12022.2 (b) and (c), it could reduce sentences and lessen incarceration costs. Until December 17, 2009, when the statute was deemed unconstitutional, section 12370 was enforced as state law. This bill does not expand the reach of state law, as it was enacted, only as it can be enforced currently. In the absence of People v. Saleem, this law and its sentencing expenses would have continued as had been practice for more than a decade. Staff also notes that if a higher court overturns the decision in People v. Saleem, the law would be enforced again and its accompanying costs incurred.