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In re Perdue

California Court of Appeals, Second District, Sixth Division

December 2, 2013

In re ANDRE J. PERDUE, on Habeas Corpus.

Super. Ct. No. 2007024357, Ventura County

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COUNSEL

Sean K. Kennedy, Federal Public Defender and Patricia A. Young, Deputy Public Defender, for Petitioner Andre J. Perdue.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews, Roberta L. Davis, Marc A. Kohm and Peggy Z. Huang, Deputy Attorneys General, for Respondent Department of Corrections and Rehabilitation.

OPINION

YEGAN, J.

Andre J. Perdue was convicted by a jury of violating Penal Code former section 12370, subdivision (a) (section 12370(a)), which proscribed the possession of body armor by a person who has been convicted of a violent felony.[1] The trial court imposed the upper term of three years and doubled it to six years because of a prior strike conviction.

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Perdue filed a petition for a writ of habeas corpus in the California Supreme Court. The Supreme Court ordered the Secretary of the Department of Corrections and Rehabilitation "to show cause before [this court]... why petitioner is not entitled to relief based on petitioner's underlying allegation that former Penal Code section 12370, subdivision (a)... is void for vagueness."

Petitioner contends that former section 12370(a) is "unconstitutionally vague as applied to him" because he "did not know - and indeed, was incapable of determining - that the bulletproof vest in his possession met the technical requirements" of the statute. Petitioner argues that the statutory definition of "body armor" is so complex that it "does not provide a person of ordinary intelligence with a reasonable opportunity to determine" which vests are prohibited by the statute.

We conclude that contrary to petitioner's express contention, former section 12370(a) is not void for vagueness "as applied" to him. We therefore deny the petition.

Facts

In March 2007 petitioner gave a deputy sheriff permission to search his vehicle. The deputy found a bulletproof vest in the trunk. Petitioner told another deputy that he was the owner of the bulletproof vest and a convicted felon. He said that he had purchased it, together with a handgun, from a person named "Cesar." Petitioner referred to the vest as "his bulletproof vest." Petitioner's girlfriend testified that "[h]e had made several comments that ...


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