Conviction for possessing burglary tools was reversed because the statute’s language limits tools to include only items intended to gain access into property and not items used during the course of the burglary. A jury found Shaw guilty of possessing burglary tools (Pen. Code, § 466) based on evidence that he used a foil-lined bag to shoplift clothing from a department store. At trial, a detective testified that the bag was used to evade the security device at the customer exit doors by preventing sensors on the merchandise from setting off the alarm. On appeal, Shaw argued there was insufficient evidence to support his conviction for possession of burglary tools because the foil-lined bag falls outside the definition of burglary tools under section 466. Held: Section 466 conviction reversed. In order to sustain a conviction for possessing burglary tools, the prosecution must prove that a defendant possessed at least one of the devices listed in section 466 “with the intent to use the tools for the felonious purposes of breaking and entering.” (People v. Southard (2007) 152 Cal.App.4th 1079, 1085.) Since the statute does not specifically list a foil-lined bag as a burglary tool, the question was whether such a bag can be considered a burglary tool if it is not used as an item to gain access into the victim’s property but rather as an item used to merely facilitate the burglary once entry has been gained. After reviewing relevant case law showing a split of authority on this issue, the court agreed with the reasoning in People v. Diaz (2012) 207 Cal.App.4th 396, which held that an “instrument or tool” under section 466 is an item intended for use “to break into or gain access to property,” not just intended for “use during the course of a burglary.” This conclusion was based on two factors: first, that the statutory language’s focus was on the element of entry and second, that a contrary interpretation would result in an absurd expansion of the statute’s scope. [Editor’s Note: A related issue is pending in the California Supreme Court in In re H.W. (2016) 2 Cal.App.5th 937, review granted 11/23/2016 (S237415/C079926) [Did the Court of Appeal err in holding that a pair of pliers, which the defendant used to remove an anti-theft device from a pair of blue jeans in a department store, qualified as a burglary tool within the meaning of Penal Code section 466?].].

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A148997.PDF