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Filed 8/9/16 In re H.W. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

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

Court Law.

C079926

THE PEOPLE,

Plaintiff and Respondent,

v.

H.W.,

Defendant and Appellant.

(Super. Ct. No. JV137101)

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.
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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.
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A delinquency petition (Welf. & Inst. Code, § 602, subd. (a)), filed April 14, 2015,

alleged the minor committed theft (Penal Code, section 484,

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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.
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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. 
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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 
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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.] 
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“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). 
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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 
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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 

 

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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.)
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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. 
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DISPOSITION

The juvenile court’s order is affirmed.

 NICHOLSON , J.

We concur:

 RAYE , P. J.

 BLEASE , J.