BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 960 (V. Manuel Perez)
As Introduced February 26, 2009
Hearing date: June 23, 2009
Penal Code
SM:mc
BODY ARMOR: POSSESSION BY SPECIFIED FELONS
HISTORY
Source: Imperial County District Attorney; San Diego County
District Attorney
Prior Legislation: AB 1707 (Wildman) - Chap. 297, Stats. of 1998
Support: Association for Los Angeles Deputy Sheriffs; California
District Attorneys Association; California Peace
Officers' Association; California Police Chiefs
Association; Riverside Sheriffs' Association; Los
Angeles Police Protective League; Commission on Peace
Officer Standards and Training; Office of the Attorney
General
Opposition:None
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUES
SHOULD THE DEFINITION OF BODY ARMOR THAT IS PROHIBITED TO BE
POSSESSED BY A PERSON WITH A PRIOR VIOLENT FELONY CONVICTION BE
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AMENDED TO DELETE THE REQUIREMENT THAT IT BE CERTIFIED BY THE
DEPARTMENT OF JUSTICE AS MEETING CERTAIN STANDARDS?
SHOULD THE DEFINITION OF BODY ARMOR FOR THAT OFFENSE BE THE SAME AS
THE DEFINITION OF A "BODY VEST" THAT SUPPORTS A SENTENCE ENHANCEMENT
IF WORN IN THE COMMISSION OF A VIOLENT OFFENSE?
PURPOSE
The purpose of this bill is to redefine "body armor" as, "parts
or all of a complete armor that may be worn on the person that
are made from any bullet resistant material intended to provide
ballistic and trauma protection for the wearer," 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 law 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).)
Current law states that any person whose employment, livelihood,
or safety is dependent on the ability to legally possess and use
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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 law defines "body armor" 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. In
certain models, the body armor consists of ballistic panels
without a carrier. Other models have a carrier from which the
ballistic panels may be removed for cleaning or replacement.
(Title 11 California Code of Regulations Section 942.)
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This bill deletes the reference to the California Code of
Regulations Title 11 Section 94 definition of "body armor,"
which defines body armor 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."
This bill instead defines "body armor" as "parts or all of a
complete armor that may be worn on the person that are made from
any bullet resistant material intended to provide ballistic and
trauma protection for the wearer."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
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<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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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
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
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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 tentative decision, as well as
any appeal that may be in response to the panel's 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:
Existing law provides that any person who has been
convicted of a violent felony and purchases, owns, or
possesses body armor is guilty of a felony. Penal
Code Section 12022.2(c) does not explicitly define
"body armor" but instead references a definition in
the California Code of Regulations (CCR) Sections
941-942. However, this reference is problematic
because CCR Sections 941-942 set a minimum standard
for "body armor" that is intended for the use of law
enforcement personnel in the field. These standards,
while a useful tool for police agencies buying body
armor, provide a cumbersome definition for the crime
of possession of body armor for a violent felon.
Thus, AB 960 will clarify existing law by deleting the
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<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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erroneous reference to the California Code of
Regulations (CCR) Sections 941-942 and instead making
it so that the definition of body armor for the
purposes of Penal Code Section 12022.2(c) is "any
bullet-resistant material intended to provide
ballistic and trauma protection for the wearer."
There have been several criminal court cases in
California that highlight the need for clarity in the
law regarding the definition of body armor. In many
of these cases, convicted felons were charged with
unlawful possession of body armor but the charges were
dismissed because their body armor did not meet the
standards outlined in CCR Sections 941-942. Two
sample cases: "The People, Plaintiff and Appellant, v.
Horace William Chapple, Defendant and Respondent" and
"The People, Plaintiff and Respondent, v. Robert
Daniel Rodriguez, Defendant and Appellant" are
included as background materials to provide actual
examples of how the erroneous reference to CCR
Sections 941-942 endangers public safety because the
defendants could not be prosecuted for possessing body
armor.
Specifically, the crime of possession of body armor is
almost never prosecuted alone. The illegal body armor
possession charge and prosecution is typically coupled
with a weapons and or drug charge and prosecution.
For instance, according to the San Diego District
Attorney's office, over the last 3 years, only one
case was charged solely for a violation of PC
12370(a). Thus, for the most part, people convicted
under AB 960 would be going to prison anyway (and for
significant lengths) for the other more serious
weapons/drug crimes. Prison sentences to be served
for the body armor possession would not actually
happen for several years. That is, if AB 960 were
approved by the legislature and signed into law this
year, new charges/prosecutions for violation of PC
12370 (a) after January 1, 2010 would not impact
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prison over crowding today and for several years
because the sentence served would be on top off the
sentence required for the more serious crimes.
Additionally any impacts would be minor since these
cases are very rare overall.
In regards to AB 960's fiscal impacts on the state,
the Assembly Committee on Appropriations Analysis
included the following: "Potential for minor state
incarceration costs, to the extent this clarification
results in additional state prison commitments. Over
the past two years, eight persons have been committed
to state prison for this offense. It is unlikely this
measure will significantly increase these figures."
AB 960 will protect law enforcement officials, parole
officers, probation officers, and the public from
violent felons who intend to use body armor as a tool
to commit further crimes against society. AB 960 will
prevent costly retrials and will better enable the
administration of justice.
2. Redefining Body Armor
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As the author has stated, 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."
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.
The definition of "body armor" in section 12370(a) not only
requires the prosecution to bring an expert witness in to
establish that the particular item seized fits the definition,
it also narrows the scope of what items constitute "body armor"
to be more restrictive than the broader definition contained in
section 12022.2(b). In a recent court case the defendant was
charged with being a person with a prior violent felony
conviction in possession of body armor. At the preliminary
hearing, the arresting officer testified that, based on his
experience and familiarity with body armor, the item he seized
from the defendant was body armor and the magistrate ordered the
defendant to stand trial for the charge in superior court. The
superior court found, however, that the officer's testimony was
insufficient to prove that the item possessed met the legal
definition of body armor and dismissed the charge. The Court of
Appeals agreed:
The crime charged consists of elements incapable of
determination by the trier of fact without the
assistance of an expert. The body armor proscribed by
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section 12370(a) must be certified based on its
"ballistic resistance to the penetration of ? test
ammunition." (Cal. Code Regs., tit. 11, 942, subd.
(e).) Clearly, whether or not the vest seized in this
case met such certification standards involved
concepts beyond common experience, and, thus, was a
proper subject for expert testimony, but not for a lay
opinion. We agree with Judge Breall that the
magistrate's determination was erroneous and that the
information was properly set aside. (People v.
Chapple, 138 Cal. App. 4th 540, 549 (2006).)
The definition of body armor contained the code of regulations
appears to be intended to establish certain certification
requirements to ensure that body armor purchased by law
enforcement agencies meet objective quality standards. Use of
this definition in section 12370(a) requires prosecutors to
prove that the item seized from a convicted felon has been
certified by the Department of Justice (DOJ) to meet those
quality standards. One way to do that would be to have a
firearms expert from DOJ testify to that effect. Presumably a
court would also accept documentary evidence to that effect,
i.e., a declaration from an authorized official at DOJ to the
effect that the make and model of body armor seized from the
defendant was one that has been tested and certified by DOJ as
meeting the specifications in the Code of Regulations.
Requiring the prosecution to meet the evidentiary burden of
establishing that the item seized fits the definition of body
armor in section 12370(a) is not the only issue raised by this
narrow definition. Presumably, not all vests that are marketed
as "body armor" have actually been so certified by DOJ. In that
case, the item seized may have been made of "bullet-resistant
material intended to provide ballistic and trauma protection for
the wearer" but would nonetheless not meet the definition of
"body armor" that a person with a violent felony conviction may
not possess.
Other items might be seized that look like body armor but have
no visible markings to identify them as a particular make and
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model that has been certified, making it difficult, if not
impossible to establish that that particular item was a make and
model certified by DOJ and thus meeting the definition in the
statute.
Redefining "body armor" in section 12370(a) as "parts or all of
a complete armor that may be worn on the person that are made
from any bullet resistant material intended to provide ballistic
and trauma protection for the wearer," as this bill proposes,
would therefore not only make it easier for prosecutors to prove
that the item seized met the legal definition of "body armor,"
it would actually broaden the definition of what is illegal to
possess if you are a person with a violent felony conviction to
be consistent with what the law currently provides additional
penalties for if worn in the commission or attempted commission
of a violent offense.
SHOULD THE DEFINITION OF "BODY ARMOR" FOR PURPOSES OF THIS
STATUTE INCLUDE ONLY BODY ARMOR THAT HAS BEEN CERTIFIED BY THE
DEPARTMENT OF JUSTICE AS MEETING SPECIFIED STANDARDS?
SHOULD THE DEFINITION OF BODY ARMOR THAT A PERSON WITH A PRIOR
VIOLENT FELONY CONVICTION MAY NOT POSSESS BE THE SAME AS A "BODY
VEST" THAT SUPPORTS A SENTENCE ENHANCEMENT WHEN USED IN THE
COMMISSION OF A VIOLENT OFFENSE?
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