People v. Shaw, A148997

Defendant James Shaw was stopped leaving a Macy’s with 11 pairs of jeans concealed in an H&M shopping bag containing an inner foil-lined “booster” bag allegedly used to defeat security sensors.
Shaw was charged with second degree commercial burglary (Pen. Code §459), grand theft, and misdemeanor possession of burglary tools (Pen. Code §466).
A jury convicted Shaw on all counts; the trial court suspended sentence and placed him on probation.
On appeal Shaw argued insufficient evidence supported the §466 conviction because the foil-lined bag is not a “burglary tool” under the statute.
The Court of Appeal reviewed statutory text, legislative history, and precedent about whether §466 covers items intended only to facilitate offenses after entry or is limited to items intended to gain access.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a foil-lined “booster” bag is a burglary tool under Penal Code §466	§466 covers “other instrument or tool” possessed with intent to commit burglary; any tool intended for use in the course of a burglary qualifies	§466 is limited to instruments intended to gain access or break/enter; items used only after entry (to facilitate theft) are not covered	Reversed §466 conviction: §466 limited to items intended to gain access into property; booster bag not covered

People v. Gordon, 90 Cal.App.4th 1409 (Cal. Ct. App.) (ejusdem generis limits §466 to items like keys or tools to pry/pull open access)
People v. Kelly, 154 Cal.App.4th 961 (Cal. Ct. App.) (held items used during burglary can be §466 tools; court adopted broader view)
People v. Diaz, 207 Cal.App.4th 396 (Cal. Ct. App.) (rejected Kelly; §466 limited to items intended to gain access to property)
In re H.W., 2 Cal.App.5th 937 (Cal. Ct. App.) (adopted Kelly’s broader test; Supreme Court review noted in opinion)
People v. Davis, 18 Cal.4th 712 (Cal. 1998) (limits what qualifies as entry-by-instrument; warns against absurd expansion of burglary statutes)