On Wednesday, March 10, 2010, the California Supreme Court voted unanimously to grant review to last year’s decision in the People v. Saleem, (2009) 180 Cal.App.4th 254. In that decision, the Second District of Appeal voided section 12370 of the California Penal Code as unconstitutionally vague. The voided section prohibited convicted felons from possessing “body armor.” In that case, defendant Ethan Saleem, a parolee convicted of voluntary manslaughter, was arrested while wearing a ten-pound camouflaged vest that was clearly labeled as body armor. (id. at p. 259.) Saleem’s contention was that the challenged code section failed to provide sufficient notice that his vest was, in fact, body armor. The Second District agreed.
In Saleem, the court of appeal read into the statute an element of the offense requiring that the defendant know or should know of the illegal character of the item. (id. at p. 269.) The court also understood the statute to offer two definitions of “body armor”: the first would be any item popularly called a bulletproof vest and the second any item that demonstrated certain ballistic resistant qualities in tests. (id. at p. 270.) Relying on the ejusdem generis canon of construction, the court believed that the legislature intended for the more specific second definition to be an exclusive subset limiting the more general first definition:
Had the Legislature intended to prohibit violent felons from possessing any bulletproof vest whatsoever, it would have constructed a definition restricted to just the first sentence. . . . But it did not. Instead it followed with the second sentence, thus incorporating a specific ballistics testing regimen into the definition of body armor. (id. at p. 271.)
Accordingly, the court interpreted the legislature’s intent was only to prohibit felons from wearing certain types of body armor. And because even if a person of ordinary intelligence knew that a garment was made of bullet-resistant material, he or she would have no reasonable way of knowing whether it would pass the testing regimen. (id. at p. 272-273.) Accordingly, the court found the statute vague.
Despite the court of appeal’s professed slavish adherence to the legislature’s intent, less than a month after the court’s decision, Senator Alex Padilla, D-Pacoima, responded by amending SB 408 to change the language of subsection (f) of the challenged statute to read “For purposes of this section, ‘body armor’ means any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor.” Two weeks later the Senate voted unanimously 35-0 to pass the emergency measure. The bill is presently before the Assembly.
Depending upon the result of the California Supreme Court’s review of the decision in Saleem and how SB 408 fares in the Assembly, convicted felons may want to think twice before wearing a ten pound Kevlar vest—it might just be body armor.
The full text of People v. Saleem is available on the California Courts web page at http://www.courtinfo.ca.gov/opinions/documents/B204646.PDF. Information regarding the status of SB 408 can be found on the Legislative Council’s page at http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=sb_408&sess=CUR&house=B&author=padilla. And for all you would-be friends of the court, check out the American Bar Association’s recently published third edition of The Amicus Brief : How to Write It and Use It Effectively, by Simpson and Vasaly. The Alameda County Law Library has a copy at the Main Branch that circulates to registered borrowers.