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
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          ____
          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.
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          ____
                            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.