Information on the crime of unlawful possession of body armor is found in California Penal Code 31360. The following is a summary of the law, punishment, and common defense related to PC 31360. For further information, contact our criminal defense attorneys today for a free consultation.
Body Armor Defined: “Body armor” is defined as any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor (PC 16288). Body armor includes bulletproof vests of any level (i.e. level IIA, II, IIIA, III, and IV ballistic vests).
Note: Stab-proof vests are not prohibited under PC 31360.
PC 31360 Law
Per PC 31360(a) any person who has been convicted of a violent felony… who purchases, owns, or possesses body armor… is guilty of a felony (PC 31360(a) Abbrev.).
Example: David is a convicted felon. His criminal conviction was for rape by force or fear (PC 261(a)). The crime of rape by force or fear is classified as a violent felony in California (PC 667.5(c)(18)). While on parole, David is caught with a bulletproof vest. Result: David is charged with unlawful possession of body armor (PC 31360(a)).
Note: It does not matter in what United States Sovereign the defendant received his underlying violent felony conviction for California PC 31360(a) to apply, so long as the state, or federal court, where the defendant received his criminal conviction, defined the defendant’s crime as a violent felony.
Per PC 31360(b)(1) any person who is prohibited from possessing a firearm under California law…, who purchases, owns, or possesses body armor… is guilty of a misdemeanor (PC 31360(b)(1) Abbrev.).
Example II: Goliath is convicted of felony welfare fraud (WI 10980(c)(2)), a non-violent felony under California law. While on probation, Goliath is caught with a bulletproof vest. Result: Goliath will be charged with a misdemeanor violation of unlawful possession of body armor (PC 31360(b)(1)).
Note: Persons prohibited from owning or possessing body armor include anyone convicted of a felony, or any convicted of a qualifying misdemeanor crime (i.e., misdemeanor crimes that prohibit firearm possession, such as misdemeanor criminal threats, misdemeanor battery, misdemeanor vandalism, etc.), and any person restrained by a criminal protective order (CPO) or domestic violence restraining order (DVRO).
PC 31360 Punishment
State Prison Sentence: A person convicted of felony PC 31360(a) may face up to sixteen (16) months, two (2) years, or three (3) years in a California state prison.
Whether the defendant receives a sixteen (16) month, two (2) years, or three (3) years prison sentence depends on many factors, such as the defendant’s criminal history, the level of sophistication used in the commission of the crime, the harm caused to any victims, and more.
Probation Sentence: A felony probation sentence may be available with some PC 31360(a) convictions. A felony probation sentence is a period of supervision, as opposed to a state prison sentence; however, a felony probation sentence for any conviction of unlawful possession of body armor can include a local county jail or work release sentence as a condition of felony probation.
A felony probation sentence, as opposed to a state prison sentence, is never guaranteed after a conviction for unlawful possession of body armor. Factors that the court contemplate in deciding whether a defendant should receive a felony probation sentence after a PC 31360(a) conviction includes the defendant’s criminal history, the disposition of any negotiated plea bargain between the district attorney and the defense attorney, and more.
Misdemeanor Conviction: A criminal defendant who is convicted of misdemeanor unlawful possession of body armor, or PC 31360(b)(1), may face up to a year in the county jail. A probation sentence, with or without some jail or work release time may be available in some PC 31360(b)(1) cases.
Additional Punishment: In addition to any jail or state prison sentence, any person convicted of either PC 31360(a) or PC 31360(b)(1), may receive any of the following punishment: criminal protective orders (CPO), restitution to the state or victim, court fines and fees, loss of immigration status, loss of professional licensing, civil lawsuits, increased punishment for future violations, and more.
PC 31360 Defense
Many defenses to a criminal charge of PC 31360 may apply depending on the circumstances, including statute of limitations (3 years for felony violations and 1 year for misdemeanor violations), coerced confession, illegal search and seizure, entrapment, self-defense, and more.
Statutory Defenses: Several defenses are incorporated into PC 31360 law itself, including PC 31360(b)(2), which states that the defendant must be informed of the prohibition against possessing body armor before the law applies to that person. Considering PC 31360 is a new law, many prohibited persons may be legitimately uninformed that they are prohibited from possessing body armor.
Defense to Possession: To be in violation of PC 31360, the defendant must have actual or constructive possession of body armor, and he must have knowledge of that possession. If the defendant has possession of body armor, but he is unaware of that possession, then he is not guilty of PC 31360 (i.e., defendant not aware that the material is ballistic proof, or defendant not aware that body armor is in his home).
Note: Actual possession means that the body armor is on the defendant or within his immediate reach and control. Constructive possession means that the defendant has the right to control the body armor, but the body armor is not in his immediate possession or control (i.e., body armor at the defendant’s home while defendant is not home).
Employment Related Need: Per PC 31360(c), A person whose employment, livelihood, or safety is dependent on the ability to legally possess and use body armor, who is subject to the prohibitions imposed by PC 31360, may file a petition for an exception to this prohibition with the chief of police or county sheriff of the jurisdiction in which that person seeks to possess and use the body armor… (PC 31360(c) Abbrev.).
Diversion Options: Diversion is a type of criminal court procedure whereby the defendant avoids a criminal conviction if he complies with probation-like conditions. For misdemeanor PC 31360(b) crimes, the defendant may petition the court to enter a diversion program. Several diversion programs may apply to misdemeanor PC 31360(b) crimes depending on the circumstances, including Judicial Diversion, Military Diversion, or Mental Health Diversion.
Post-Conviction Relief: A person who has been convicted of possessing body armor per PC 31360, may have several post-conviction relief options, including, obtaining a certificate of rehabilitation, appealing the conviction, withdraw his guilty plea, modify a probation sentence, remove a criminal protective order, and more.
For further information about California’s recently enacted PC 31360 law, or CA's prohibition against possession of body armor for convicted criminals, contact our criminal defense attorneys today for a free consultation.
Our law firm represents defendants charged with every level of misdemeanor and felony crime in the Inland Empire, including the cities and courts of Redlands, Colton, Fontana, Rancho Cucamonga, Riverside, Victorville, Yucaipa, Ontario, Highland, and more. Call today!
909-913-3138
Related Articles
