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Filed 8/9/16 In re H .W. CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

I n 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

.2 FACTUAL AND PROCEDURAL BACKGROUND
On October 13, 2014, l oss prevention agent Marcus Nealy and loss prevention
manager Stephanie Garza were employed at a Sear s 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 r estroom , and , w hen the minor came out of the
restroom, Garza no longer saw the jeans. Nealy checked the res troom but found no jeans. Meanwhile, Garza alerted Nealy the minor was leaving the store without stopping at a cash register or attempting to pay f or 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 te stified “ [p] liers are commonly used as a too l 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.3

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 mi nor to two days in juvenile hall with credit for time served, and set a maximum term of confine ment 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 i t discloses substantial evidence

— that is, evidence that is reasonabl e, 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 appear s “ that upon no hypothesis whatever is there

2 Undesignated statutory references are to the Penal Code.4

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, cro w, 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 o r 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 b urglary 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 enter ing. ” ( 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 ” un der
that statute because they were not similar to the i tems listed in section 466 and there was
no evidence they co uld be used for the purpose of breaking, entering , or otherwise gaining acc ess 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 a ttempted to steal from the store

.5

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 ). W e 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 mak e s very little noise. The jury convicted the defendant of violating section
466

. ( Gordon, supra, 90 Cal. Ap p.4th at p. 1411.)
The court reversed

. Guided by the rule of ejusdem generis , “ which applies when general terms follow a list of specific ite ms or categories, or vice versa, ” t he court noted ceramic pieces were not listed in section 466 , and determine d 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 non e of the devices listed resembles ceramic spark plug pieces that can be thr own 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 p p. 1412

- 1413 , original italics .) Several years later, the Court of Appeal, First District, Division Three , i n Kelly , took a different view. There, police responded to a report of an automobile burglary and6

found a van with a shattered window

. A p olice 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 a utomobile 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 p p. 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 thos e 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 tha n 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 stat ute is the legislative purpose, ” and the court “ will usually inquire into the evils which prompted its
enactment and the metho d of elimination or contro l which the Legislature chose. ” ’ [Citation.]7

“ 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 indicat es this is what the Legislature intended. To the contrary, we think the plain import of ‘ other instrument or tool, ’ and the only m eaning that effectuates the obvious legislative purpose of section 466 includes tools that the evidence shows are possessed w ith the intent to be used for burglary. ” ( Kelly, supra , 154 Cal. App.4th at
p p. 9 66 , 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 bu rglary. 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
possess ion of burglary tools pursuant to section 466. ( Diaz, supra, at p. 398.)
The C ourt of A ppeal 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, quoti ng 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 b urglary
suffices for conviction ” ( Diaz, supra, 207 Cal.App.4th at p. 402 )

.8

The Diaz court held as follows: “ [S] ection 466 is limited to instruments and tools
used to break into o r 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 ac cess 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 a nd entering, given the Legislature itself has
spe cified 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 m eaning 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
p p. 9 67

- 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 Dia z is overly narrow and inconsistent with the otherwise unambiguous language of the statute. The Diaz court9

held “ [t] he tool must be for the purpose of breaking, entering, or otherwise gaining a ccess
to the victim ’ s property. ” ( Diaz , supra, 207 Cal. App.4th at p. 404. ) However, the language of s ection 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

. ” A s explained by the Court of Appeal, First Appellate District, Division Two, in Southard , th e offens e 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 i n terjects a requirement of breaking, an
element long ago eliminated from burglary under section 459. For instance, under circumstances such as those here, i t has long been held that a person who enters a store with the intent to commit theft or a felony c an 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 wi th 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. Ba rry (1892) 94 Cal. 481, 483; accord , People v. Salemme (1992) 2 Cal.App. 4th 775, 7 8 1 [ 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
con sideration 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 .)10

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 oc cupant of that structure or (2) is invited in by the occupant who knows of an d 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 tha t 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. T he minor was found to be in possession of pliers . He
concedes he possessed and used th os e 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 re move 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
p age 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 466.11 DISPOSITION
The juvenile court ’ s order is affirmed.

NICHOLSON , J.

We concur:

RAYE , P. J.

BLEASE , J.