APPEAL from a judgment of the Superior Court of Los Angeles County, John David Lord, Judge. Reversed. (Los Angeles County Super. Ct. No. NA073164).
The opinion of the court was delivered by: Klein, P. J.
CERTIFIED FOR PUBLICATION
Defendant and appellant, Ethan Saleem, appeals the judgment entered following his conviction for possession of body armor by a person previously convicted of a violent felony, with prior serious felony and prior prison term findings (Pen. Code, §§ 12370, 667, subd. (b)-(i), 667.5.)*fn1 He was sentenced to state prison for a term of eight years.
We reverse Saleem's conviction. Section 12370 is unconstitutionally void for vagueness because it does not provide fair notice of which protective body vests constitute the body armor made illegal by the statute.
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
On January 23, 2007, at about 3:00 a.m., Los Angeles Police Officer Jeffrey Rivera and his partner were on patrol in Wilmington. Rivera was in the passenger seat of their marked patrol car. He saw an approaching vehicle make a quick right turn and pull off to the side of the road. Because this seemed suspicious, the officers circled the block and came to a stop next to a Honda Element. The Honda's engine was running and it was parked just about where Rivera had seen the vehicle pull over. Shining their lights on the Honda, the officers saw the driver try to hide himself by reclining his seat. Two people in the back seat suddenly popped into view and one of them started reaching underneath the car seat. This was defendant Saleem. Rivera ordered everyone to exit the Honda.
Saleem did not immediately respond and Rivera had to repeat his order four or five times. After he got out of the Honda, Saleem had to be told three or four more times to step onto the curb with his hands up. When Saleem began walking away from the officers, Rivera again ordered him to put his hands up and turn around. Saleem took five or six steps, then stopped and turned around. At that point, Rivera could see Saleem was wearing "a camouflage vest" similar to the "ballistic" or "bulletproof" vests Rivera had worn while he was deployed in Iraq with the Marines. Over the vest, Saleem was wearing an unbuttoned shirt.
As a matter of officer safety, Rivera immediately alerted his partner to Saleem's vest. Both officers drew their guns, pointed them at Saleem, and ordered him to the ground. Saleem complied with this order only after it had been repeated two or three times. Finally, he got down on his knees and put his hands up. Rivera searched under the seat where he had seen Saleem reaching, but he did not find anything illegal. Saleem told the officers he was on parole for voluntary manslaughter.
2. Officer Rivera's Testimony About the Vest
Rivera testified Saleem's vest weighed about 10 pounds. A label on the vest said "[b]ody armor, fragmentation protection vest for ground troops." Behind the label was a pamphlet addressing "the use and care of body armor fragmentation protection vest, ground troops...."
During his time in the military, Rivera had participated in the testing of flak jackets similar to Saleem's body vest: "[T]he vest was placed on a dummy, and we were able to fire various types of rounds at [it], and we were also able to observe the different capabilities of the vest and what rounds it's able to withstand." Based on that experience, Rivera opined Saleem's vest would protect against pistol rounds, such as.22,.38,.40 and.45 caliber, and 9-millimeter.
3. The Body Armor Expert's Testimony About the Vest
Los Angeles Police Officer Richard Kehr, a subject matter expert in ballistics and body armor, is one of 20 people nationwide on the Technological Working Group for the National Institute of Justice (NIJ), a federal organization concerned with standards and testing procedures for ballistics and body armor. Kehr testified the NIJ currently recognizes four basic levels of body armor protection and that the Working Group was in the process of raising the NIJ minimum standards.
Kehr testified the protection provided by any particular body armor depends on such factors as the number of its layers of protective material, its stitch pattern, its weave pattern, and the "type of rounds they're trying to stop...." Concealable body armor is designed to stop handgun fire but not rifle rounds, which require a hard armor plate. Kehr testified the testing of body armor is a very technical process that is not as simple as shooting at a dummy wearing a vest: "When it comes to the actual testing of the body armor, we have that done either at NIST [National Institute of Standards and Technology] or at... two independent test labs. I don't have the [facility] and means to do the ballistic testing at our department.... To test body armor you have to have a special type of clay, it has to be certain size box, it has to be at a certain temperature and humidity, and then you have to calibrate it before you can test it." "They do six shot tests on it, four shots done directly straight into it and two of them are done at a 30 degree angle. After each shot, they measure the back face signature... [i.e.,] the amount of dent that goes into the clay from after the round hits. The maximum amount allowed is 44 millimeters. Anything outside the 44 millimeters is considered a... vest failure."
Kehr initially examined Saleem's vest without cutting it open. He checked its weight and the flexibility of its interior material. He testified the vest was "fairly heavy compared to a standard concealable body armor, it's pretty rigid. Usually... the more rigid the vest is, the higher the threat it can stop. This vest is a fragmentation vest. Fragmentation vests are designed to stop shrapnel you have usually from IED's,*fn2 mines, grenades, things of that nature, and typically they're designed just to do that and not to stop ballistic ammunition, handgun rounds. [¶] But by the weight of this vest and everything, I believe that there are certain rounds that it would be able to stop, without a problem."
Kehr also testified about what he found when he subsequently cut open the lining of the vest to examine its insides: "It confirmed my belief that this vest would have some ballistic capabilities. It's got eight layers of an aramid material.... [¶]... Kevlar is an aramid material. The rigidity on there, the type of pattern on the weave, looks consistent to other materials that I have seen and examined. And based on that, I believe it has some ballistic capabilities."
As for the vest's ability to protect against specific types of ammunition, Kehr explained how such factors as a bullet's composition, shape, weight, jacketing, and velocity will determine a body vest's degree of ballistic resistance. For example, discussing whether Saleem's vest would resist.22 caliber ammunition, Kehr testified: ".22 caliber [long rifle high velocity] bullets are 40 grain, a lot of them are made of lead. Lead being soft, it's easy to mushroom out. [¶]... [T]he design of body armor is to take a round and deform it, mushroom it out, making it a wider surface area. The wider surface area, the harder it is to get through and break the tensile strength of the micro filament. Lead being soft, it will mushroom out.22 caliber long rifle rounds ranging anywhere from 1,050 feet per second up to approximately 1,550 to 1,600 feet per second. [¶] 22 magnum rounds, they're usually around 1,875 feet per second. I doubt seriously this vest would be able to stop that type of ammunition. Those have usually a metal jacket around it. Even though it's a 40 grain, it will maintain its shape and keep its roundness. [¶] Ammunition comes in various designs, some are hollow point, some are round nose, some are flat nose. With that type of round, at that velocity, maintaining its shape, I seriously doubt this vest would be able to stop that."
Kehr opined Saleem's vest would protect against. 22 caliber long rifle high velocity rounds,.38 caliber hollow point rounds, jacketed soft point 357 Magnum rounds, nine-millimeter rounds and.45 caliber hollow point rounds. However, Saleem's vest would not protect against two other types of handgun ammunition: a.22 caliber magnum round with a metal jacket, or a full metal jacket.357 round. Nor would it protect against rifle ammunition. The following colloquy then occurred:
"Q: Officer Kehr, does this vest meet your definition, the definition you understand as an expert... in the field of body armor, does this vest meet your definition of what body armor is?
"A: It has some capabilities for a bullet resistant vest, yes."
Kehr testified the pamphlet found inside Saleem's vest stated: "This vest does not protect you against small arms fire. It may tend to decrease the severity of wounds... from rifles and machine guns and will sometimes stop small arms fire that hit from an angle, or if the slug has low velocity." (Italics added.) Kehr testified the pamphlet did not change his opinion that Saleem's vest provided some ballistic resistance because, in military parlance, "small arms fire" refers to machine gun and rifle fire. "[E]ven though technically handguns are part of small arms fire,... it's not considered as part of it, the handguns. The military usually refers to small arms fire as machine guns and rifles."
On cross-examination, Kehr again acknowledged Saleem's vest was a "flak jacket" designed to stop shrapnel. Although it might have "some ballistic capabilities," that is not what it was designed for. The following colloquy also occurred:
"Q: [W]hen you looked at this booklet [i.e., the pamphlet found inside Saleem's vest] and told us that this vest does not protect you against small arms fire, you formed the opinion that there was still some small arms fire that it could protect you from like the.22 caliber?
"Q: Okay. So despite the fact that that book[let] says this does not stop small arms fire, you believe that it does?
"Q: And this belief is just based upon your years of training and experience?
"Q: And this belief is based upon the fact that you were able to cut open the jacket and look through the layers of material; is that correct?
1. Saleem contends there was insufficient evidence his protective vest constituted "body armor" under section 12370.
2. Saleem also contends section 12370 is unconstitutionally void for vagueness.
1. There was Sufficient Evidence Saleem's Vest Constituted Body Armor
a. The Prohibition of Section 12370.
Section 12370 outlaws the possession of body armor by a person previously convicted of a violent felony. In defining body armor, the statute specifically references the California Code of Regulations by providing, as relevant here: "Any person who has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5,... who purchases, owns, or possesses body armor, as defined by Section 942 of Title 11 of the California Code of Regulations... is guilty of a felony...." (§ 12370, subd. (a).) The referenced portion of the Code of Regulations sets out a detailed scheme establishing minimum technical standards for the certification of body armor to be purchased for law enforcement personnel.
Section 941 of the Code of Regulations states: "This article shall apply to body armor (formerly referred to as bulletproof vests) to be purchased for State law enforcement officers and shall establish minimum requirements and testing methods to ensure ballistic resistance for certification purposes. Police body armor submitted by manufacturers for certification by the Department of Justice shall meet the minimum standards specified in these regulations." (Cal. Code Regs., tit. 11, § 941.) Section 942 of the Regulations states: "Wherever these terms are used in this article, the following definitions shall apply: [¶]...[¶] (e) Body Armor. `Body armor' is popularly called a `bulletproof vest'. For purposes of these regulations, `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...." (Cal. Code Regs., tit. 11, § 942, subd. (e), italics added.)
Subsequent sections of the Code of Regulations set out the "minimum requirements and testing methods" to be employed in ascertaining "ballistic resistance for certification purposes." (Cal. Code Regs., tit. 11, § 941.) If body armor meets the requirements for configuration, workmanship and labeling, it is then tested for ballistic protection: "Body armor shall protect against the standard test rounds specified in Section 946 of this title. It shall also provide protection against the lesser threats listed in Table 1 for Type I, such as 12 gauge 00 buckshot, 22 caliber Long Rifle, High Velocity, 38 Special, and most other factory loads in 357 Magnum and 9 mm rounds." (Cal. Code Regs., tit. 11, § 945, subd. (e).) The Regulations specify particular equipment and supplies to be used in the testing. (Cal. Code Regs., tit. 11, § 946.) For instance, use of a chronograph is specified, which the Regulations explain is "an instrument that times projectiles in flight" and "consists of triggering screens and electronic time measurement controls." (Cal. Code Regs., tit. 11, § 942, subd. (g).) The specific test ammunition to be used is set out in the margin.*fn3
b. No Requirement the Proscribed Vest be Previously Certified
Saleem contends his conviction must be set aside because a violation of section 12370 required evidence his protective body vest had been certified as body armor, under the testing regimen specified by the Code of ...