As the result of a drafting error, the statute prohibiting possession of burglary tools makes it appear to require actual possession of the prohibited items, but the statute should be construed to encompass constructive possession as well. A jury convicted Bay of being a felon in possession of a gun and ammunition, misdemeanor possession of burglary tools, and giving a false name to police. One issue he raised on appeal was the insufficiency of the evidence he possessed burglary tools because they were not “in his possession.” Held: Reversed for instructional error. Although the text of Penal Code section 466 prohibits a person from “having upon his or her in his or her possession” burglary tools, a review of the legislative history of the section shows that an “or” was inadvertently omitted after the first “her” in the quoted phrase. The drafting error in the statute makes it appear as though the tools must be in a person’s actual possession when the legislative history does not show any intent to eliminate constructive possession as a basis for liability. Here, a trier of fact could reasonably find that the burglary tools in the backpack in Bay’s car were in his constructive possession.

The special instruction on possession of burglary tools prejudicially omitted the requirement that the tools be possessed with felonious intent. Section 466 prohibits possession of burglary tools with the intent to use the tools for a felonious purpose. There is no standard jury instruction on possession of burglary tools. In this case the trial court gave an instruction regarding possession of burglary tools that omitted the element of felonious intent. Under Chapman the relevant question is whether the guilty verdict rendered was surely unattributable to the error. The issues of intent and possession of the backpack were contested in this case and the evidence of possession was not strong. Hence, the erroneous instruction was not harmless beyond a reasonable doubt, requiring reversal.

The evidence was sufficient to prove defendant had constructive possession of the gun and ammunition. In the same backpack containing the burglary tools, police found a gun and ammunition. Bay admitted he had previously been convicted of a felony. On appeal he argued the evidence failed to prove he knowingly possessed the prohibited items. Felons are prohibited from knowingly possessing or having under their custody or control guns and/or ammunition. (Pen. Code, §§ 29800, subd. (a)(1), 30305, subd. (a)(1)). A defendant has actual possession when the weapon is in his immediate possession. He has constructive possession when he exercises a right to control it. Though not overwhelming, there was evidence from which the jury could infer that Bay knowingly possessed the prohibited items. Namely, his knowledge there was marijuana in the backpack’s front pocket and his giving a false name to officers, reflecting a consciousness of guilt.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A154498A.PDF