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Name: People v. Saleem
Case #: B204646
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 12/17/2009
Subsequent History: rev. granted 3/10/10, S179660 & dismissed 9/6/10

Certification of body armor is not an element of Penal Code section 12370. Appellant was convicted of possession of body armor by a felon. (Pen. Code, § 12370.) An expert at trial testified that the vest appellant possessed was a “flak jacket” meant to stop shrapnel, and that while it had some capability for bullet resistance, it was not designed for that purpose. On appeal appellant argued there was insufficient evidence the vest constituted body armor because it had not been certified. The court held certification is not an element. In defining body armor, section 12370 references the California Code of Regulations which, in turn, sets out a scheme establishing the minimum technical standards for body armor that will be purchased for use by law enforcement. But this does not make certification an element of the offense; rather, the statute only requires proof that the item possessed is equivalent to, or better than, body armor certified for sale to police.
Penal Code section 12370 is unconstitutionally void because the definition of body armor is vague. Appellant also argued that section 12370 is void for vagueness because it fails to give fair notice of what kind of protective vest it is illegal to possess. First, the court held that because the statute is not a public-welfare offense, it must be construed to contain a knowledge element. As such, the prosecution has to prove the defendant knew, or reasonably should have known, the vest in his possession had characteristics making it illegal. (See e.g., In re Jorge M. (2003) 23 Cal.4th 866 [Legislature intended “a degree of scienter regarding the character of the firearm”].) Next, the court agreed the statute does not provide adequate notice of what body armor is made illegal by it. The statute references the guidelines in the Code of Regulations to define the prohibited item. Those regulations do not include all bullet proof vests, but rather have quite technical requirements. And, the legislative history shows the Legislature chose not to adopt the broad definition of “body vest” it adopted for another statute (Pen. Code, § 12022.2), but instead opted for the definition in the Code of Regulations. Given the technical definition purposefully adopted, as it currently stands only an expert would know if a particular body vest was prohibited by the statute.