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Name: In re Perdue
Case #: B250221
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 12/02/2013
Summary

Former Penal Code section 12370, subdivision (a) (prohibiting possession of body armor by a felon) is not void for vagueness as applied to felon who had a “bullet proof vest.” A jury convicted Perdue of being a felon in possession of body armor (former Pen. Code, § 12370, subd. (a)). Perdue filed a petition for writ of habeas corpus in the California Supreme Court, which ordered the Secretary of the Department of Corrections to show cause before the Court of Appeal why Perdue was not entitled to relief based on his allegation the section was void for vagueness as applied to him. Held: Relief denied. Due process requires that criminal statutes be definite enough to (1) provide a “standard of conduct for those whose activities are proscribed” and (2) provide a “standard for police enforcement and for ascertainment of guilt.” Former section 12370(a) prohibits possession of “body armor” that meets the certification standards set forth in section 942 of Title 11 of the California Code of Regulations. In People v. Chapple (2006) 138 Cal.App.4th 540, the court made clear that only an expert is qualified to determine whether a protective vest meets the technical specifications of body armor within the meaning of the statute. Although the statute contains a very precise and technical definition of body armor, it is not void for vagueness as applied to Perdue, who knowingly acquired a bulletproof vest after having been convicted of violent felonies. He had fair warning that acquiring a bulletproof vest (which had an “American Body Armor” label) may subject him to criminal liability and he assumed the risk that the vest would qualify as “body armor” within the meaning of the statute. Further, the statute could not be more precise as a standard for law enforcement and determining guilt.