Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD193668, Lisa A. Foster, Judge.
IRION, J.
A jury convicted Robert Daniel Rodriguez of possession for sale of a controlled substance (Health & Saf. Code, § 11378), possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)), and possession of "body armor" by a person convicted of a violent felony (Pen. Code, § 12370, subd. (a)). The trial court sentenced Rodriguez to eight years in prison. The sentence consisted of two years for the possession for sale of a controlled substance, plus an additional six years based on Rodriguez's two prior convictions for the same offense. (Health & Saf. Code, § 11370.2, subd. (c) [requiring persons convicted of violating Health & Saf. Code, § 11378 to receive a "consecutive three-year term for each prior felony conviction of . . . . Section . . . 11378"].) The trial court also imposed separate sentences of two years in prison for the unlawful possession of ammunition and body armor convictions, but ordered that those sentences be served concurrent with the eight-year prison term.
Rodriguez appeals, contending that his conviction for the unlawful possession of body armor must be reversed because: (i) the trial court failed to instruct the jury that for an item to constitute "body armor" under Penal Code section 12370 (section 12370), it must be certified as resistant to the penetration of certain test ammunition; and (ii) even if the jury had been properly instructed, there was insufficient evidence that the protective vest at issue was "body armor" as defined by the statute. As discussed below, we agree that the conviction for unlawful possession of body armor must be reversed due to the absence of any evidence that the vest at issue constituted "body armor" as that term is defined in section 12370. Consequently, while affirming the judgment in all other respects, we reverse the conviction for unlawful possession of "body armor."
FACTS
On September 15, 2005, members of the United States Marshals Service conducted a raid on a room at the Radisson Hotel in La Jolla. Deputy marshals found three persons, including Rodriguez, inside the room along with a large quantity of illegal drugs. The deputy marshals immediately contacted the San Diego Integrated Narcotics Task Force. Officers from the task force arrived and, after searching the room, discovered approximately 900 grams of methamphetamine, a methamphetamine cutting agent, digital scales, baggies, and methamphetamine residue in a microwave. The officers also seized "a fragmentation vest," several rounds of .357-caliber ammunition and one round of nine-millimeter ammunition. After locating other evidence, including videotapes, linking Rodriguez to the drugs found in the room, the officers arrested him.
Augustine Jones, a member of the Carlsbad Police Department assigned to the narcotics task force, was one of the officers who searched the hotel room and testified regarding the items seized. With respect to the vest, Jones, a former member of the Marine Corps, testified that it was a "military fragmentation vest" designed for protection from "small scrap metal" such as fragments from grenades. Jones believed that the vest was "[p]robably Army" issued.
DISCUSSION
Rodriguez contends that his conviction for unlawful possession of "body armor" must be reversed because there was insufficient evidence that the vest found in the hotel room was "body armor" for purposes of section 12370.
As noted earlier, Rodriguez also contends that his conviction for violating section 12370 must be reversed because the jury was not instructed that a conviction required certification of the vest's resistance to the penetration of certain test ammunition. As we conclude that there was not sufficient evidence for even a properly instructed jury to conclude that Rodriguez violated section 12370, we do not reach the claim of instructional error.
In evaluating a challenge to the sufficiency of the evidence, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66 (Snow).) In addition, we " 'must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).)
Rodriguez does not dispute that there was sufficient evidence for the jury to conclude that he possessed the fragmentation vest located in the hotel room. He argues only that the evidence was insufficient to establish that the vest is "body armor" under section 12370. Due to the peculiar nature of the statute outlawing the possession of body armor by a violent felon, we agree with Rodriguez's contention.
Section 12370 prohibits the possession of "body armor" by a person previously convicted of a violent felony. (Id., subd. (a).) Rather than define "body armor" in the text of section 12370, the Legislature defined the term by incorporating a portion of the California Code of Regulations that sets minimum standards for the state's purchase of "body armor" for law enforcement personnel. (§ 12370; Cal. Code Regs., tit. 11, §§ 941-942.) Thus, under California law, it is a crime for any person who has previously been convicted of a violent felony to possess body armor of equivalent, or better, quality to that worn by the State's law enforcement personnel or, more precisely, to "possess[] body armor, as defined by Section 942 of Title 11 of the California Code of Regulations." (§ 12370, subd. (a), italics added.)
The statute reads: "(a) Any person who has been convicted of a violent felony, as defined in subdivision (c) of [Penal Code] Section 667.5, under the laws of the United States, the State of California, or any other state, government, or country, who purchases, owns, or possesses body armor, as defined by Section 942 of Title 11 of the California Code of Regulations, except as authorized under subdivision (b), is guilty of a felony, punishable by imprisonment in a state prison for 16 months, or two or three years." (§ 12370, subd. (a).) Subdivision (b) provides that "[a]ny person whose employment, livelihood, or safety is dependent on the ability to legally possess and use body armor" can petition the chief of police or county sheriff for an "exception to this prohibition." (§ 12370, subd. (b).)
Under the referenced California Code of 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(e).) The regulations go on in subsequent sections to define, with technical precision, the specific methods, including particular test weapons and ammunition, that must be utilized to certify protective gear as "body armor" under the regulations. (See Cal. Code Regs., tit. 11, §§ 941-957.)
Section 12370, then, does not prohibit a violent felon from possessing all protective vests, but only those certified to "provide ballistic resistance to the penetration of test ammunition" under conditions specified in the California Code of Regulations, title 11, section 942(e). (People v. Chapple (2006) 138 Cal.App.4th 540, 548-549 (Chapple) ["The body armor proscribed by section 12370[, subdivision ](a) must be certified based on its 'ballistic resistance to the penetration of . . . test ammunition' "].) Here, as the Attorney General concedes, there was no trial "evidence regarding the certification of the vest."
Despite this concession, the Attorney General emphasizes that under the applicable standard of review, we " 'must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence,' " and contends that the jury could appropriately deduce from the evidence that the vest was certified. (Ochoa, supra, 6 Cal.4th at p. 1206.) Specifically, the Attorney General argues the jury could "assume the body armor was properly certified to provide 'ballistic resistance to the penetration of ammunition' since it was likely army issued." We find this contention unconvincing.
As noted above, a conviction of section 12370 requires certification of "ballistic resistance to the penetration of test ammunition" specified in the incorporated regulations, not any "ammunition" as the Attorney General's quotation suggests. (Cal. Code Regs., tit. 11, § 942(e), italics added.)
While the testimony of Officer Jones, upon which the Attorney General relies, was arguably sufficient to establish that the vest recovered from the hotel room had some protective properties, this testimony did not constitute substantial evidence that the vest met the very specific standard for "body armor" incorporated by the Legislature into section 12370. (Snow, supra, 30 Cal.4th at p. 66 [evidence sufficient to support a conviction must be "evidence that is reasonable, credible and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt"]; cf. People v. Garcia (1999) 21 Cal.4th 1, 10 [recognizing that " 'rule of lenity' " counsels construction of a penal statute " 'as favorably to the defendant as its language and the circumstances of its application may reasonably permit' "].)
Putting aside the fact that Office Jones's testimony only established that the vest was probably Army issued, his testimony necessitated two further inferences to support a conviction under section 12370: (i) that the United States Army requires the same certification standards for "fragmentation vests" as the State of California does for "body armor"; and (ii) that the vest was, in fact, certified under these equivalent standards. There was, however, no evidence presented below to support either of these inferences. Rather, this chain of inferences (the vest was army issued; the army requires the same certification standards as the State of California; and the army applied those certification requirements when procuring the vest) is, at best, sheer speculation, insufficient to support a criminal conviction. (People v. Waidla (2000) 22 Cal.4th 690, 735 [" 'speculation is not evidence, less still substantial evidence' "].)
The Attorney General also notes that the vest was admitted into evidence "and therefore was accessible for the jury to observe and handle." The Attorney General does not contend, however, that there is anything about the vest itself that would enable the jurors to determine through their own inspection that it was certified in accordance with the California Code of Regulations. (See Chapple, supra, 138 Cal.App.4th at p. 549 [holding that "whether or not the vest seized in this case met" the requisite "certification standards involved concepts beyond common experience, and, thus, was a proper subject for expert testimony, but not for a lay opinion"].) Thus the fact that the vest was admitted into evidence cannot substitute for the requisite evidence of certification.
In sum, there was no evidence offered or admitted that the vest found in the hotel room was certified to "provide ballistic resistance to the penetration of test ammunition" under the applicable regulations. (Cal. Code Regs., tit. 11, § 942(e).) As there was, then, no evidence that the vest constituted "body armor, as defined by Section 942 of Title 11 of the California Code of Regulations," Rodriguez's conviction for the unlawful possession of "body armor" must be reversed as lacking substantial evidence. (§ 12370, subd. (a).)
DISPOSITION
The conviction on count 3 is reversed. In all other respects, the judgment is affirmed. The trial court is directed to modify the abstract of judgment accordingly and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: NARES, Acting P. J., McDONALD, J.