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
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STAFF COMMENTS: This bill may meet the criteria for referral to
the 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.