In Re H.W. (3rd Dist) Under PC 466, a "Burglary Tool" Need Not Have Any Relationship to a Burglary

Master H.W. walked into his local Sears with a pair of wire cutters, described as "pliers".  He took a pair of jeans into a dressing room and used the pliers to remove the anti-theft tag on the jeans.  After stashing the jeans in his backpack and leaving the store, he was caught by store detectives.  

Based upon these facts, a juvenile judge found beyond a reasonable doubt that H.W. had committed the crime the possession of burglary tools, PC 466.  H.W. appealed.

The Third District Affirms. 

There is a tendency for appellate justices to put their ratiocinative vehicles on cruise control when deciding juvenile cases.  This pedestrian effort is no exception.

Those who subscribe to the flawed rhetorical device of "legislating from the bench" (of which I am not a member) have a treasure trove of material here.  Section 466 states, in pertinent part, 

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 coach, or vehicle as defined in the Vehicle Code, . . . . is guilty of a misdemeanor.

Parsing out the text, we get this.

 (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) 152 Cal.App.4th 1079, 1084-1085)

The opinion spends most of its time analyzing whether the item H.W. possessed satisfied element (2), concluding it does.  This is a reasonable interpretation given the catch-all provision of "other instrument or tool".  Where the panel spends little space is element (3), which is the real crux of this case.  H.W. obviously did not have the intent to use the tool for the purpose of breaking into Sears or entering Sears.  The panel tries to avoid this obvious weakness by, in an obvious judicial sleight of hand, replacing the statutory text of element (3) with the phrase, "with the intent to use the tools for a burglarious purpose".

This substitution proves to be too clever by half.  Every first year law student knows that the actus reus of burglary is the entry into the store or residence.  H.W.'s burglary of Sears was complete when he walked inside with the intent to steal some jeans.  The pliers played no role in the burglary.  The intent of H.W. was not to use the pliers to commit a burglary (they were excrescent as to that crime), rather he intended to use to pliers to commit a theft after the burglary was complete.  So, despite the panel's ham-handed attempt to shoe-horn the facts here into PC 466, it is not quite clever enough to do so convincingly.

As an aside, if H.W. did this today could he be convicted of PC 466, or would the "felonious" element be missing given the enactment of PC 459.5?