In re H.W.
- Reporters:
- ,
- Before:
- Raye, Blease, Nicholson
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.”
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
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 sufficient substantial evidence to support [the conviction].” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
“[I]n order to sustain a conviction for possession of burglary tools in violation of
The minor asserts the pliers he possessed are not specifically identified in
The People argue the pliers constitute an “other instrument or tool” within the meaning of
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
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
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
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
“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.]
“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 ofsection 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
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
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
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
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
In our view, the interpretation of
The interpretation of
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
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
The juvenile court‘s order is affirmed.
NICHOLSON , J.
We concur:
RAYE , P. J.
BLEASE , J.
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.
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.