Vol. 24 No. 27- Court Rules That Felons Must Be Told, Specifically, Which Body Armor They Are Prohibited From Possessing


December 23, 2009

On December 17, 2009, in the case of People v. Saleem, 2009 Cal App LEXIS 2011, in a 2-1 vote, the California Court of Appeal, Second Appellate District, held that Penal Code sec. 12370 was “void for vagueness because it failed to provide fair notice to defendant that his vest was illegal.”  P.C. sec. 12370(a) states, in part, that “Any person who has been convicted of a violent felony, … who purchases, owns, or possesses body armor, … is guilty of a felony ….”

The defendant was on parole for voluntary manslaughter and, after being stopped for a traffic offense, he was observed wearing a protective vest with a label indicating that it was body armor for ground troops.  He was arrested and prosecuted for violating P.C. 12370.

Challenges to the Statute

Since Penal Code sec. 12370 incorporated the definition of body armor contained in Sec. 941 of the California Code of Regulations, and which states, in part, that “body armor means those parts of a complete armor that provide ballistic resistance to the penetration of the test ammunition for which a complete armor is certified …,” Saleem argued that section 12370 required proof that the vest had been certified as body armor.

The court disagreed with that argument, stating that, “(w)e reject this claim because the plain meaning [of the statute] is that the proscribed vest need not have been previously certified in order for its possession to violate section 12370.  Rather, the statute prohibits the possession of a body vest that meets the certification requirements set forth in the Regulations.”  At trial, the prosecution produced an expert who testified that the vest worn by Saleem met the definition of body armor.

However, Saleem’s second challenge to the statute was that it was “void for vagueness,” since it was unclear what constituted body armor.  The court held that a law is “void for vagueness” when it fails “to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited ….” (apparently, the label stating it was body armor was insufficient).

The court also ruled that “section 12370 must be construed to contain a knowledge element ….”  In other words, “the defendant must know that he or she is actually in possession of the allegedly prohibited item,” and that “the defendant must know, or reasonably should have known, the characteristics of the item possessed that make it illegal.”

The court concluded that, based on the language of the statute, the legislative history, and California decisions construing the statutory language, “as judged by each one of these three factors, section 12370 is manifestly void for vagueness.”

Dissenting Opinion

The dissenting judge, Richard D. Aldrich, citing to numerous cases, argued that the statute was clear and understandable.  “Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.”

Judge Aldrich stated that, “I do not believe the majority’s concern that felons will be unable to distinguish between permissible and impermissible body armor is warranted.”  He goes on to note that the state must prove, at trial, that the armor worn by the felon meets the mandated standard or it would be precluded from securing a conviction.

Furthermore, he said, “I see no reason to assume that the Legislature intended that a defendant’s knowledge of the technical specifications of his or her body armor is an element of Penal Code section 12370.”  Judge Aldrich further stated that “it is enough that a violent felon knows he or she possesses a bulletproof vest or body armor, as those terms are popularly understood ….”


In 1998, Penal Code section 12370 was passed and was designed, according to legislative intent, to “stop the threat of violent felons who are able to thwart police officers by wearing body armor, potentially injuring or killing innocent officers or civilians in the process.”  Unfortunately, as a result of the Court of Appeal’s decision in the Saleem case, that law is now unenforceable.  Until there is a legislative remedy, or the court’s decision is stayed, felons can now purchase body armor legally.

This appears to be the type of court decision which calls for all good people to join together in an attempt to right a wrong.  Law enforcement labor and management should move forward swiftly in an effort to prevent this decision from creating even greater danger for law enforcement personnel than already exists.

It would be most appropriate for the Attorney General to take immediate action to petition the California Supreme Court for review and to urge the Court to stay the lower court’s decision, even if the Supreme Court needs time to decide on whether or not to accept the case.  At the same time, there may be legislative action which could be taken to “fix the problem” identified by the Court of Appeal.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.