Filed 12/7/17
                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                        DIVISION ONE


 THE PEOPLE,
            Plaintiff and Respondent,
                                                      A148997
 v.
 LINDA SHAW,                                          (San Francisco County
                                                      Super. Ct. No. SCN224910)
            Defendant and Appellant.


        Defendant James1 Shaw used a foil-lined bag to shoplift several pairs of jeans
from a San Francisco department store. A jury convicted him of second degree burglary,
grand theft, and possession of burglary tools. On appeal, he claims that his conviction for
possession of burglary tools lacks substantial evidence because the foil-lined bag is not a
burglary tool within the meaning of Penal Code2 section 466. We agree.
        Although the Courts of Appeal that have addressed the issue have agreed that
burglary tools under section 466 include items intended for use to gain access into
property, they have disagreed whether burglary tools also include items intended solely to
facilitate crimes committed once inside the property. The Supreme Court is currently
considering a decision that is part of this disagreement. (In re H.W. (2016) 2 Cal.App.5th
937 (H.W.) (review granted Nov. 22, 2016, S237415).) Pending a decision in H.W., we
are compelled by the language and history of section 466 to conclude that burglary tools
are limited to items intended to be used to gain access into property. As there is no


        1
        Shaw is a transgender man who uses James as his first name. We refer to him as
male, as did the parties in the trial court.
        2
            All further statutory references are to the Penal Code.

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dispute here that Shaw did not intend to use the foil-lined bag to gain entry into the store,
we reverse his conviction under section 466.3 Otherwise, we affirm.
                                         I.
                               FACTUAL AND PROCEDURAL
                                    BACKGROUND
       On September 11, 2015, an asset protection detective at the Union Square Macy’s
noticed Shaw “hunched over” in an area of the store where higher-value merchandise is
sold. As the detective watched, Shaw “grabbed a stack of jeans from the sales counter”
and placed it in a bag. He then walked away quickly, heading toward the exit. The
detective followed and, with the aid of another Macy’s employee, stopped Shaw as soon
as he left the building. Shaw resisted, fell to the ground, and appeared to have a seizure.
       An H&M bag recovered from Shaw contained 11 pairs of True Religion jeans.
Inside the bag was “a secondary bag” lined with foil. The detective testified that the
secondary bag was a “booster bag,” which is “used by professionals [to] try to evade the
security device at the customer exit/entrance doors” by preventing sensors on the
merchandise from setting off an alarm.
       Shaw was charged with a felony count of second degree commercial burglary, a
felony count of grand theft of personal property, and a misdemeanor count of possession
of burglary tools.4 The jury convicted him of all charges, and the trial court suspended
imposition of the sentence and placed him on probation for two years.
                                             II.
                                         DISCUSSION
       Shaw contends that insufficient evidence supports his conviction for possession of
burglary tools because section 466 covers only “tools or instruments that can be used in

       3
         As a result, we need not address Shaw’s contention that the jury was improperly
instructed on the elements of that offense.
       4
         The charges were brought under sections 459 (burglary), 487, subdivision (a)
(grand theft), and 466 (possession of burglary tools). Shaw was also charged with
burglary and grand theft based on a later incident at Macy’s, but the trial court declared a
mistrial on those charges after the jury deadlocked on them, and we do not discuss them
further.

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the very process of breaking and entering.” We agree with him that the foil-lined bag
falls outside of the definition of burglary tools under section 466.
       Generally, in evaluating claims challenging the sufficiency of the evidence, “ ‘we
review the whole record to determine whether . . . [there is] substantial evidence to
support the verdict . . . such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in
the light most favorable to the prosecution and presume in support of the judgment the
existence of every fact the jury could reasonably have deduced from the evidence.’ ”
(People v. Manibusan (2013) 58 Cal.4th 40, 87.) Our review is de novo to the extent a
claim raises issues of statutory interpretation. (People v. Elder (2014) 227 Cal.App.4th
411, 417.)
       Under section 466, it is a misdemeanor for a person to possess “a picklock, crow,
keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim,
tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master
key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with
intent feloniously to break or enter into any building, railroad car, aircraft, or vessel,
trailer coach, or vehicle as defined in the Vehicle Code.” To support a conviction under
this statute, the People must prove “(1) possession by the defendant; (2) of tools within
the purview of the statute; (3) with the intent to use the tools for the felonious purposes of
breaking or entering.” (People v. Southard (2007) 152 Cal.App.4th 1079, 1084-1085.)
       Since the statute does not specifically list a foil-lined bag as a burglary tool, the
question here is whether such a bag can be considered to be an “other instrument or tool
[that is possessed] with intent feloniously to break or enter into [property].” An early
case to address whether an item not specifically listed in section 466 could be considered
an “other instrument or tool” was People v. Gordon (2001) 90 Cal.App.4th 1409
(Gordon). When Gordon was decided section 466 did not, as it does now, specifically
list spark plug chips or pieces, which can be used to break glass quietly. (Gordon, at
pp. 1411-1412.) Division One of the Fourth District Court of Appeal held that spark plug
chips or pieces did not constitute an instrument or tool within the meaning of section 466.


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(Gordon, at p. 1412.) Applying the principle of ejusdem generis, under which the scope
of a general term that follows specific items is “ ‘ “restricted to those things that are
similar to those which are enumerated specifically,” ’ ” the court determined that the
items listed in the then-existing statute were limited to “keys or key replacements, or
tools that can be used to pry open doors, pick locks, or pull locks up or out” and “[n]one
of the devices enumerated [were] those whose function would be to break or cut glass.”
(Ibid.) Thus, the premise of Gordon’s holding was that burglary tools under section 466
were limited not only to items intended for use to gain access into property but more
specifically to items intended for use to gain access into property in a particular manner.
       In response to Gordon, the Legislature amended section 466 by adding “only
ceramic or porcelain spark plug chips or pieces, [but] not other common objects such as
rocks or pieces of metal that can be used to break windows.” (Stats. 2002, ch. 335, § 2.)
Although this response demonstrates the Legislature’s belief that Gordon’s interpretation
of the statute was too narrow, nothing in either the amendment itself or its history
suggests that the Legislature disagreed with Gordon’s broader premise that burglary tools
within the meaning of section 466 are limited to items intended to gain access into
property.
       Subsequent cases have drawn different lessons from the amendment. In People v.
Kelly (2007) 154 Cal.App.4th 961 (Kelly), Division Three of this Court considered
whether a sling shot and a box cutter could be considered instruments or tools within the
meaning of section 466. (Kelly, at p. 963.) In a ruling with which we agree, Kelly
concluded that the sling shot was such an instrument or tool because testimony had been
presented that burglars use sling shots to fling porcelain chips at vehicle windows to
break them and gain access into the interior. (Id. at p. 968.) The court remarked,
correctly in our view, that “[t]he legislative response to Gordon undermines [that
decision’s] conclusion that section 466 was intended to encompass only items that can be
used to unlock, pry, or pull something open.” (Id. at pp. 966-967.)
       But in a ruling with which we disagree, Kelly concluded that the box cutter was
also a burglary tool because testimony had been presented that burglars use box cutters to


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cut car-stereo wires after gaining access into vehicles. (Kelly, supra, 154 Cal.App.4th at
p. 968.) In deciding that any tool used in the course of a burglary is a burglary tool under
section 466, the court stated that “the plain import of [the section’s reference to] ‘other
instrument or tool,’ and the only meaning that effectuates the obvious legislative purpose
of section 466 [to prevent burglaries,] includes tools that the evidence shows are
possessed with the intent to be used for burglary.” (Kelly, at pp. 967-968.) We think, to
the contrary, that the statute’s language plainly limits burglary tools to include only items
intended to gain access into property.
       In People v. Diaz (2012) 207 Cal.App.4th 396 (Diaz), Division Three of the
Fourth District Court of Appeal weighed in and disagreed with Kelly’s determination that
any item intended to be used at any time in the course of a burglary is a burglary tool.
(Diaz, at p. 403.) Diaz considered the Legislature’s amendment to be a tacit approval of
Gordon’s reliance on the principle of ejusdem generis, and it pointed to legislative
expectations that the section’s phrase “other instrument or tool” was to be interpreted in
light of the listed items and not “ ‘to include an overly broad range of generic objects,
such as rocks or pieces of tile, that could be used to break windows.’ ” (Diaz, at p. 403,
italics omitted.) Diaz therefore rejected Kelly’s suggestion that “any item that may be put
to use during the course of a burglary suffices for conviction” and held that “section 466
is limited to instruments and tools used to break into or gain access to property in a
manner similar to using items enumerated in [the statute]. That the perpetrator breaks
into or enters property, or attempts to do so, and happens to have access to a tool that
may be used in the course of the burglary is not enough. The tool must be for the purpose
of breaking, entering, or otherwise gaining access to the victim’s property.” (Diaz, at
pp. 402, 404.) Applying this rule to facts before it, the court concluded that the items at
issue, latex gloves and a large plastic bag, were not burglary tools because no evidence
suggested that the defendant intended to use them to break or enter into property. (Id. at
pp. 399, 404.)
       Finally, in H.W., the Third District Court of Appeal agreed with Kelly that
section 466 “ ‘includes tools that the evidence shows are possessed with the intent to be


                                              5
used for burglary.’ ” (H.W., supra, 2 Cal App 5th at p. 944.) Disagreeing with Diaz,
H.W. held that section 466 does not require that the item be intended to gain access to
property, and it read Diaz to improperly “interject[] a requirement of breaking, an
element long ago eliminated from burglary under section 459.” (H.W., at p. 945.)
Applying Kelly’s interpretation of section 466 to the facts before it, the court held that a
pair of pliers used to cut security tags off a pair of jeans was a burglary tool under the
statute. (H.W., at p. 945.)
       We find the reasoning of Diaz to be more persuasive, and we agree with its
holding that an “instrument or tool” under section 466 is an item intended for use “ ‘to
break into or gain access to property,’ ” not just intended for “use during the course of a
burglary.” (Diaz, supra, 207 Cal.App.4th at pp. 402, 404.) Our conclusion is based not
only on Diaz’s application of the principle of ejusdem generis and analysis of
section 466’s legislative history, with which we concur, but also on two additional
factors: the statutory language’s focus on the element of entry, and the absurd expansion
of the statute’s scope that would result from interpreting burglary tools to include any
item used to facilitate crimes committed once a defendant is inside property. We discuss
these additional two factors in turn.
       First, section 466 criminalizes possessing instruments or tools “with intent
feloniously to break or enter into” property. Had the Legislature intended to criminalize
the possession of any instrument or tool that could be used to commit any portion of a
burglary, it could have simply referred to the required intent as the “intent to commit
burglary” instead of phrasing it to emphasize the element of entry. Moreover, as H.W.
observed (albeit in making a different point), breaking is no longer a required element of
burglary under section 459 (H.W., supra, 2 Cal.App.5th at p. 945), but section 466 still
refers to an intent to break or enter, not just enter. In our view, the statutory language’s
focus on gaining access to property is at odds with the view that the statutory definition
includes any instrument or tool that is intended for use to commit crimes after access has
been obtained.



                                              6
       Second, under California law burglary is an entry with the intent to commit any
felony, not just theft-related offenses. A burglary is complete “upon entry with the
requisite intent to commit a felony or a theft . . ., regardless of whether the felony or theft
committed is different from that contemplated at the time of entry, or whether any felony
or theft actually is committed.” (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042.)
Thus, the only element common to all burglaries is entry. Under Kelly and H.W.’s
interpretation of section 466, burglary tools include any item that a defendant intends to
use to commit any felony inside the entered property. In our view, it is absurd to
consider items to be burglary tools when they are intended for use solely to facilitate non-
theft related crimes. A piece of rope, for example, is not a burglary tool just because a
defendant broke into a house intending to strangle an occupant. And a book of matches
is not a burglary tool just because a defendant went into a store intending to burn it down.
Limiting the definition of burglary tools to items that are intended to gain access to
property avoids such unreasonable applications.
       We find support for our reasoning in People v. Davis (1998) 18 Cal.4th 712
(Davis), in which the Supreme Court addressed whether a defendant could be convicted
of burglary under section 459 on the basis that he placed a forged check in a chute in a
walk-up window of a check-cashing business. (Davis, at p. 714.) Although burglary
“can be committed by using an instrument to enter a building,” not just by entering with
one’s body, the Court concluded that passing a forged check into a building did not
qualify as burglary. (Id. at pp. 714, 716.) It explained, “It is important to establish
reasonable limits as to what constitutes an entry by means of an instrument for purposes
of the burglary statute. Otherwise the scope of the burglary statute could be expanded to
absurd proportions,” so that even mailing a forged check to a bank could constitute
burglary. (Id. at p. 719.) Observing that “the ‘underlying basis for the criminal sanction’
of burglary is ‘ “the danger caused by the unauthorized entry itself,” ’ ” the Court
determined that the insertion of a forged check into a chute in a walk-up window did not
qualify as entry by instrument because it did not “violate[] the occupant’s possessory
interest in the building.” (Id. at p. 722.)


                                               7
       Davis’s emphasis that the primary purpose of section 459 is to criminalize
dangerous entries is at odds with the notion that section 466 should be interpreted to
cover any instrument or tool that can be used to facilitate any aspect of a burglary.
Because neither the statutory language nor legislative history supports such an expansive
reading of section 466, we conclude that an item does not qualify as a burglary tool under
that statute unless it is intended to gain access into property. As there is no evidence that
Shaw used or intended to use the foil-lined bag to gain entry to Macy’s, his conviction
under section 466 must be reversed.
                                             III.
                                        DISPOSITION
       The conviction for possession of burglary tools is reversed. The judgment is
otherwise affirmed.




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                                _________________________
                                Humes, P.J.




We concur:




_________________________
Margulies, J.




_________________________
Dondero, J.




People v. Shaw A148997


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Trial Court:
       San Francisco County Superior Court


Trial Judge:
       Hon. Samuel K. Feng


Counsel for Defendant and Appellant:

       Robert V. Vallandigham, First District Appellate Project

Counsel for Plaintiff and Respondent:
       Xavier Becerra, Attorney General
       Gerald A. Engler, Chief Assistant Attorney General
       Jeffrey M. Laurence, Senior Assistant Attorney General
       Alice B. Lustre, Deputy Attorney General
       Gregg E. Zywicke, Deputy Attorney General




People v. Shaw A148997

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