Filed 8/9/16; ordered pub. 8/25/16 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                    THIRD APPELLATE DISTRICT
                                                 (Sacramento)
                                                       ----



In re H.W., a Person Coming Under the Juvenile                          C079926
Court Law.

THE PEOPLE,                                                     (Super. Ct. No. JV137101)

                  Plaintiff and Respondent,

         v.

H.W.,

                  Defendant and Appellant.




         In this Welfare and Institutions Code section 602 proceeding, the juvenile court
sustained a petition charging the minor, H.W., with theft and possession of burglary tools.
The minor challenges only the burglary tools finding. We affirm.




                                                        1
                    FACTUAL AND PROCEDURAL BACKGROUND
         On October 13, 2014, loss prevention agent Marcus Nealy and loss prevention
manager Stephanie Garza were employed at a Sears department store in Yuba City.
Watching the sales floor via the store’s closed circuit surveillance system, Nealy saw the
minor enter the store with “a backpack that looked empty” and noticed he was “looking
around very suspiciously.” Nealy and Garza took up separate positions on the sales floor
and communicated by cell phone as they continued to observe the minor.
         Garza told Nealy the minor removed the antitheft tag from a pair of jeans using a
pair of pliers, carried the jeans into the restroom, and, when the minor came out of the
restroom, Garza no longer saw the jeans. Nealy checked the restroom but found no jeans.
Meanwhile, Garza alerted Nealy the minor was leaving the store without stopping at a
cash register or attempting to pay for the jeans. Nealy headed outside to apprehend the
minor.
         Once outside the store, Nealy stopped the minor, identified himself as a loss
prevention agent, told the minor he “knew [the minor] had concealed the . . . jeans,” and
escorted the minor back into the store. Garza called the police.
         When Yuba City Police Officer Joshua Jackson arrived at the store, Nealy and
Garza informed him the minor used “a pair of diagonal cutters or wire cutters” to remove
the security tag on the jeans and placed the jeans in the backpack before leaving the store
without paying for them. A search of the minor’s backpack revealed the jeans and a pair
of pliers.1 The minor had no wallet, no money, no credit cards, and no identification.
         Officer Jackson later testified “[p]liers are commonly used as a tool to remove tags
from clothing items that have a metal pin-type securing device that cannot be broken or
cut with, say, a knife.”




1        Both parties use the term “pliers” throughout their briefing. So do we.

                                              2
       A delinquency petition (Welf. & Inst. Code, § 602, subd. (a)), filed April 14, 2015,
alleged the minor committed theft (Penal Code, section 484,2 subd. (a)), possession of
burglary tools (§ 466), and trespass (§ 602.5).
       Following a contested jurisdiction hearing, the juvenile court sustained the theft
and burglary tool possession allegations, but found the trespass allegation had not been
proven beyond a reasonable doubt. The minor was adjudged a ward of the juvenile court
and placed on juvenile probation. The juvenile court committed the minor to two days in
juvenile hall with credit for time served, and set a maximum term of confinement of eight
months.
       The minor filed a timely notice of appeal.
                                        DISCUSSION
       The minor contends there is insufficient evidence to sustain the juvenile court’s
finding that he possessed a “burglar’s tool,” or that he possessed the pliers with the
felonious intent to commit a burglary, within the meaning of section 466. We disagree.
       In addressing the minor’s claim, 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. [Citations.]
‘ “[I]f the verdict is supported by substantial evidence, we must accord due deference to
the trier of fact and not substitute our evaluation of a witness’s credibility for that of the
fact finder.” ’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.) We accord due
deference to the verdict and will not substitute our conclusions for those of the trier of
fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) A conviction will not be reversed
for insufficient evidence unless it appears “that upon no hypothesis whatever is there




2      Undesignated statutory references are to the Penal Code.

                                               3
sufficient substantial evidence to support [the conviction].” (People v. Redmond (1969)
71 Cal.2d 745, 755.)
       Section 466 provides: “Every person having upon him or her in his or her
possession 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,
. . . . is guilty of a misdemeanor.”
       “[I]n order to sustain a conviction for possession of burglary tools in violation of
section 466, the prosecution must establish three elements: (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 (Southard).) “ ‘ “The offense is complete when tools
or other implements are procured with intent to use them for a burglarious purpose.” ’
[Citation.]” (Id. at p. 1088.) Such intent is usually proven by circumstantial evidence.
(People v. Cain (1995) 10 Cal.4th 1, 47.)
       The minor asserts the pliers he possessed are not specifically identified in section
466 and do not otherwise fall within the definition of “other instrument or tool” under
that statute because they were not similar to the items listed in section 466 and there was
no evidence they could be used for the purpose of breaking, entering, or otherwise
gaining access into a building or vehicle.
       The People argue the pliers constitute an “other instrument or tool” within the
meaning of section 466 because the minor concedes he intended to use the pliers to
commit theft inside the store and the evidence shows he used the pliers to remove an
antitheft device from the jeans he attempted to steal from the store.



                                               4
       Both parties rely in some fashion on People v. Gordon (2001) 90 Cal.App.4th
1409 (Gordon), superseded by statute as discussed in People v. Kelly (2007)
154 Cal.App.4th 961 (Kelly), and People v. Diaz (2012) 207 Cal.App.4th 396 (Diaz). We
discuss each case below.
       In Gordon, decided by the Court of Appeal, Fourth District, Division One, the
defendant was discovered pulling a car stereo speaker out of the victim’s car, the rear
passenger window of which had been shattered into small pieces. Six weeks later, a
police officer saw the defendant talking to two men who were inside a car either
removing or installing a stereo. The officer searched the defendant and found two small
pieces of porcelain from a spark plug in his pants pocket. At trial, a police detective
testified thieves often use pieces of ceramic spark plugs to shatter car windows because
that method makes very little noise. The jury convicted the defendant of violating section
466. (Gordon, supra, 90 Cal.App.4th at p. 1411.)
       The court reversed. Guided by the rule of ejusdem generis, “which applies when
general terms follow a list of specific items or categories, or vice versa,” the court noted
ceramic pieces were not listed in section 466, and determined they did not fall within that
section’s “other instrument or tool” category. Under the rule, “application of the general
term is ‘ “restricted to those things that are similar to those which are enumerated
specifically.” ’ [Citations.]” (Gordon, supra, 90 Cal.App.4th at p. 1412.) Concluding
that “[n]one of the devices enumerated are those whose function would be to break or cut
glass—e.g., rocks, bricks, hammers or glass cutters, and none of the devices listed
resembles ceramic spark plug pieces that can be thrown at a car window to break it,” the
court concluded “the test is not whether a device can accomplish the same general
purpose as the tools enumerated in section 466; rather, the device itself must be similar to
those specifically mentioned.” (Id. at pp. 1412-1413, original italics.)
       Several years later, the Court of Appeal, First District, Division Three, in Kelly,
took a different view. There, police responded to a report of an automobile burglary and

                                              5
found a van with a shattered window. A police inspector apprehended the defendant and
found inside his backpack several items, including a slingshot, a box cutter, and a
flashlight. The inspector concluded, based on his experience in working burglaries, that
those three items were burglary tools because “[a] slingshot is commonly used with a
ceramic chip to break automobile windows; this device ‘will crack the glass usually on
the first hit.’ Box cutters are used to cut the wires on car stereos. Flashlights are used to
see inside dark car interiors.” (Kelly, supra, 154 Cal.App.4th at p. 964.) The trial court
concluded the defendant violated his probation because he was in possession of burglary
tools under section 466. (Kelly, supra, at p. 965.)
       The defendant appealed, relying on Gordon for the proposition that the items
found were not “ ‘other instrument[s] or tool[s]’ ” within the meaning of section 466.
(Kelly, supra, 154 Cal.App.4th at pp. 965-966.) The First District, Division Three,
disagreed and affirmed. Noting it had no difficulty placing a slingshot or a box cutter
within the category of “ ‘tools’ or ‘instruments’ as those terms are commonly
understood[:]”
       “In Gordon, the court seems to have applied the ejusdem generis rule without
identifying any ambiguity in section 466. We do not consider the language proscribing
possession of ‘any instrument or tool’ with the specified felonious intent to be inherently
ambiguous. But assuming that it is, Gordon thwarts, rather than effectuates, the plain
legislative purpose to deter and prevent burglaries. [Citation.] ‘ “It is to be remembered
that ‘the doctrine of ejusdem generis is but a rule of construction to aid in ascertaining the
meaning of the Legislature, and may be used to carry out, but not to defeat the legislative
intent.’ ” [Citation.] The “major consideration in interpreting a criminal statute is the
legislative purpose,” and the court “will usually inquire into the evils which prompted its
enactment and the method of elimination or control which the Legislature chose.” ’
[Citation.]



                                              6
       “Under Gordon’s interpretation, section 466 authorizes law enforcement to
apprehend only burglars and would-be burglars who employ a limited set of means to
achieve their nefarious ends, while malfeasants who use other means to break and enter
are immunized from punishment even where the evidence establishes their intent to use
the tool or instrument in their possession to commit burglary. We see nothing in the
statute that indicates this is what the Legislature intended. To the contrary, we think the
plain import of ‘other instrument or tool,’ and the only meaning that effectuates the
obvious legislative purpose of section 466 includes tools that the evidence shows are
possessed with the intent to be used for burglary.” (Kelly, supra, 154 Cal.App.4th at
pp. 966, 967-968, fn. omitted.)
       The court held there was “sufficient evidence to conclude that the slingshot and
box cutters were instruments or tools within the scope of section 466.” (Kelly, supra,
154 Cal.App.4th at p. 968, fn. omitted.)
       Five years later, the Court of Appeal, Fourth Appellate District, Division Three, in
Diaz revisited the issue. There, the defendant was apprehended while attempting to
commit a residential burglary. The arresting officers found a large black bag containing
latex gloves, and later testified that the gloves were “ ‘burglary tools.’ ” (Diaz, supra,
207 Cal.App.4th at p. 399.) A jury convicted the defendant of several charges, including
possession of burglary tools pursuant to section 466. (Diaz, supra, at p. 398.)
       The Court of Appeal reversed. After considering the statute’s legislative history
and comparing Gordon and Kelly, the court concluded its review of the legislative history
supported an interpretation of section 466 closer to Gordon’s requirement that “ ‘the
device itself must be similar to those specifically mentioned’ ” (Diaz, supra, 207
Cal.App.4th at p. 401, quoting Gordon, supra, 90 Cal.App.4th at p. 1413), than to Kelly’s
apparent suggestion that “any item that may be put to use during the course of a burglary
suffices for conviction” (Diaz, supra, 207 Cal.App.4th at p. 402).



                                              7
       The Diaz court held as follows: “[S]ection 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 section 466. 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. Nor is it enough that a common
implement may be used for breaking and entering, given the Legislature itself has
specified its intent was ‘to add only ceramic or porcelain spark plug chips or pieces, not
other common objects such as rocks or pieces of metal that can be used to break
windows, to the list of burglary tools in Section 466 of the Penal Code.’ (Stats. 2002, ch.
335, § 2, p. 1298.)” (Diaz, supra, 207 Cal.App.4th at p. 404, italics omitted.)
       Finding “there was no evidence that common latex gloves or the bag in which they
were found could be used or were intended to score a breach in [the victim’s] home
defenses or otherwise gain [the defendant] entry or access to [the victim’s] property, nor
that these items were in any way similar to items the Legislature has set apart in section
466 for additional punishment when possessed as burglary tools,” the court concluded
there was insufficient evidence to support the defendant’s section 466 conviction. (Diaz,
supra, 207 Cal.App.4th at p. 404.)
       We disagree with Gordon and Diaz, agree with the analysis in Kelly, and conclude
“the plain import of ‘other instrument or tool,’ and the only meaning that effectuates the
obvious legislative purpose of section 466 includes tools that the evidence shows are
possessed with the intent to be used for burglary.” (Kelly, supra, 154 Cal.App.4th at
pp. 967-968, fn. omitted.) Such an interpretation is consistent with the purpose of the
statute which is to prevent the crime regardless of whether the tool is used to gain entry,
to break into the building, or to effectuate the theft.
       In our view, the interpretation of section 466 in Diaz is overly narrow and
inconsistent with the otherwise unambiguous language of the statute. The Diaz court

                                               8
held “[t]he tool must be for the purpose of breaking, entering, or otherwise gaining access
to the victim’s property.” (Diaz, supra, 207 Cal.App.4th at p. 404.) However, the
language of section 466 contains no such requirement, instead making it a crime to
possess the specified items or an “other instrument or tool with intent feloniously to break
or enter into any building . . . or vehicle.” As explained by the Court of Appeal, First
Appellate District, Division Two, in Southard, the offense is complete when the tools are
“ ‘procured with a design to use them for a burglarious purpose,’ ” and it is “ ‘not
necessary to allege or prove an intent to use them in a particular place, or for a special
purpose, or in any definite manner.’ ”3 (Southard, supra, 152 Cal.App.4th at p. 1088,
italics added.)
       The interpretation of section 466 in Diaz interjects a requirement of breaking, an
element long ago eliminated from burglary under section 459. For instance, under
circumstances such as those here, it has long been held that a person who enters a store
with the intent to commit theft or a felony can be convicted of burglary even though entry
is during regular business hours while the store is open to the general public. “ ‘[A] party
who enters with the intention to commit [larceny or] a felony enters without an invitation.
He is not one of the public invited, nor is he entitled to enter. Such a party could be
refused admission at the threshold, or ejected from the premises after the entry was
accomplished.’ ” (People v. Gauze (1975) 15 Cal.3d 709, 713, quoting People v. Barry
(1892) 94 Cal. 481, 483; accord, People v. Salemme (1992) 2 Cal.App.4th 775, 781 [a



3      In Southard, the defendant possessed numerous items specifically designated as
burglary tools as well as other items which were not so designated, such as two black
sweatshirts, a ski mask, one pair of binoculars, several walkie-talkie radios, a flashlight,
and a strap-on head light. In concluding there was sufficient evidence to establish the
defendant possessed burglary tools with felonious intent, the court declined to limit its
consideration to only those items specifically designated within the statute as burglary
tools. Rather, it considered all the items found when reaching its conclusion. (Southard,
supra, 152 Cal.App.4th at p. 1090.)

                                              9
person entering a structure “with the intent to commit a felony is guilty of burglary except
when he or she (1) has an unconditional possessory right to enter as the occupant of that
structure or (2) is invited in by the occupant who knows of and endorses the felonious
intent”].) Put another way, a person need not use the tool or instrument he or she
possesses to break into the building so long as he or she procured that tool or instrument
intending to use it “ ‘for a burglarious purpose.’ ” (Southard, supra, 152 Cal.App.4th at
p. 1088.)
       Such is the case here. The minor was found to be in possession of pliers. He
concedes he possessed and used those pliers for the purpose of committing theft inside
the store. He entered the store with the pliers in an otherwise empty backpack, and had
no credit cards, money, or other means to pay for any merchandise. Once inside the
store, he used the pliers to remove an antitheft device from the jeans, secreted the jeans in
the backpack, and left the store without attempting to pay. That is, he “ ‘procured [the
pliers] with a design to use them for a burglarious purpose’ ” (Southard, supra,
152 Cal.App.4th at p. 1088), and did in fact use the pliers for the burglarious purpose of
stealing the jeans. Thus, like the box cutters in Kelly, supra, 154 Cal.App.4th at
page 968, the pliers constituted an “other instrument or tool” for purposes of section 466.
       There was, therefore, sufficient evidence to sustain the juvenile court’s finding the
minor possessed an “instrument or tool with intent feloniously to break or enter” within
the meaning of section 466.




                                             10
                                    DISPOSITION
     The juvenile court’s order is affirmed.



                                                  NICHOLSON   , J.



We concur:



     RAYE                 , P. J.




     BLEASE               , J.




                                          11
Filed 8/25/16
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                              ----




In re H.W., a Person Coming Under the Juvenile                     C079926
Court Law.

THE PEOPLE,                                               (Super. Ct. No. JV137101)

                  Plaintiff and Respondent,                CERTIFICATION FOR
                                                             PUBLICATION
        v.

H.W.,

                  Defendant and Appellant.




     APPEAL from a judgment of the Superior Court of Sacramento County, Stacy
Boulware Eurie, Judge. Affirmed.

      Law Office of Robert McLaughlin and Robert McLaughlin, under appointment by
the Court of Appeal, for Defendant and Appellant.

      Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and F. Matt
Chen, Deputy Attorneys General, for Plaintiff and Respondent.



                                               1
THE COURT:


       For good cause it now appears that the opinion in the above-captioned case filed
herein on August 9, 2016, should be published in the Official Reports. It is so ordered.


FOR THE COURT




      RAYE                  , P. J.




      BLEASE                , J.




      NICHOLSON             , J.




                                            2
