—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.
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.”
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)
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
‘“[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)
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.
Both parties rely in some fashion on
People v. Gordon
(2001)
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,
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 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,
The defendant appealed, relying on
Gordon
for the proposition that the items found were not “ ‘other instruments] or tool[s]’ ” within the meaning of section 466.
(Kelly, supra,
“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
“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,
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,
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,
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
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,
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 held “[t]he tool must be for the purpose of breaking, entering, or otherwise gaining access to the victim’s property.”
(Diaz, supra,
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,
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.
The juvenile court’s order is affirmed.
Appellant’s petition for review by the Supreme Court was granted November 22, 2016, S237415.
Notes
Both parties use the term “pliers” throughout their' briefing. So do we.
Undesignated statutory references are to the Penal Code.
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