In re H.W. ( 2019 )

(Reposted with correct lower court information)
IN THE SUPREME COURT OF
CALIFORNIA
In re H.W., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
H.W.,
Defendant and Appellant.
S237415
Third Appellate District
C079926
Sacramento County Superior Court
JV137101
March 28, 2019
Justice Cuéllar authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Kruger, and Groban concurred.
IN RE H.W.
S237415
Opinion of the Court by Cuellar, J.
California law punishes not only familiar offenses such as
unlawfully breaking or entering into a building, but the
possession of certain physical tools — a crowbar, for example, a
pair of vise grip pliers, or some “other instrument or tool” — with
the intent “feloniously to break or enter” into a building or
vehicle. (Pen. Code, § 466.) Yet the Courts of Appeal have
reached conflicting conclusions about the kinds of tools
encompassed by the phrase “other instrument or tool” in Penal
Code section 466,1 and the intent required to trigger criminal
liability under the statute. We granted review to resolve the
conflict.
H.W. was a minor who entered a Sears department store
in Yuba City, California, with the intent to steal a pair of jeans.
When he was apprehended, he was in possession not only of the
stolen jeans but a pair of pliers approximately ten inches in
length, with a half-inch blade. The juvenile court sustained the
burglary tool possession allegation filed against H.W., whom the
court then designated a ward and placed on juvenile probation.
He contends the pliers are not an “other instrument or tool”
under section 466.
1
Unless otherwise specified, all further statutory
references are to the Penal Code.
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IN RE H.W.
Opinion of the Court by Cuéllar, J.
What we conclude is that criminal liability under section
466 requires not only possession of a given “instrument or tool”
encompassed by the statute, but an intent to use it to break into
or otherwise effectuate physical entry into a structure in order
to commit theft or some other felony within the structure. So
we reverse the Court of Appeal’s judgment upholding the
juvenile court’s finding that H.W. possessed an “other
instrument or tool with intent feloniously to break or enter”
within the meaning of section 466.
I.
In April 2015, the Sacramento County District Attorney
filed a petition under Welfare and Institutions Code section 602
seeking to declare minor H.W. a ward of the court. The petition
alleged that on October 13, 2014, H.W. committed theft (Pen.
Code, § 484, subd. (a)) and possession of burglary tools (§ 466).2
H.W. denied the allegations in the petition, and a contested
jurisdictional hearing was held on July 1, 2015.
Loss prevention agent Marcus Nealy testified that on
October 13, 2014, he was watching the Yuba City Sears sales
floor via the store’s closed-circuit surveillance system. Nealy
saw H.W. enter the store “with a backpack that looked empty”
and saw H.W. “looking around very suspiciously.” Nealy and
loss prevention manager Stephanie Garza communicated by cell
phone while continuing to monitor the sales floor. Garza told
Nealy that H.W. had a pair of pliers and used them to remove
an anti-theft tag from a pair of jeans. Nealy testified the anti-
2
The petition also alleged that minor H.W. committed
trespass (§ 602.5) in a separate incident on January 24, 2015.
The juvenile court found the trespass allegation had not been
proven beyond a reasonable doubt.
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IN RE H.W.
Opinion of the Court by Cuéllar, J.
theft tag sprays ink if released by force but can be removed by
using a tool to cut the pin that locks into the tag. Nealy observed
H.W. enter the restroom with the jeans but did not see the jeans
when H.W. exited the restroom, so Nealy checked the restroom
for the jeans but did not find them. Garza then alerted Nealy
that H.W. was exiting the store. H.W. did not stop at any of the
cash registers, nor did he otherwise attempt to pay for the jeans.
Nealy stopped H.W. once he exited the store and escorted him
back inside to the loss prevention office. The police were then
called.
When Yuba City Police Officer Joshua Jackson arrived,
Nealy and Garza explained that H.W. had used pliers to remove
an anti-theft tag from a pair of jeans, which he then put into his
backpack and exited the store without paying for the jeans.
Officer Jackson testified that “[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.” Officer Jackson searched H.W. and found that he had no
wallet, money, or identifying items on his person.
H.W. denied all the allegations in the petition and did not
testify on his own behalf before the juvenile court. The juvenile
court sustained the theft and burglary tool possession
allegations. H.W. was adjudged a ward of the juvenile court and
placed on juvenile probation.
On appeal, H.W. challenged the juvenile court’s finding
that he possessed a burglary tool within the meaning of section
466. He also argued that there was insufficient evidence to
support the finding that he possessed the pliers with the
felonious intent to commit a burglary. In his appellate brief,
H.W. argued that he “possessed the pliers with the intent to
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IN RE H.W.
Opinion of the Court by Cuéllar, J.
commit misdemeanor theft – not burglary.” H.W. asserted that
there was no related evidence to support an inference that he
possessed the pliers with a “burglarious purpose” and no
evidence linking him to an actual burglary.
The Court of Appeal disagreed with H.W. It concluded the
pliers were an “other instrument or tool” for the purposes of
section 466 and the possession of a burglary tool allegation was
properly sustained. (In re H.W. (2016) 2 Cal.App.5th 937, 945)
(H.W.).) The court expressed its agreement with the First
District decision in People v. Kelly (2007) 154 Cal. App. 4th 961,
finding that the only meaning of “other instrument or tool” that
fulfills the purpose of section 466 includes tools that the
evidence shows are possessed with the intent to be used for
burglary. (H.W., at p. 944.) It explained how this interpretation
is consistent with the purpose of the statute, which is to prevent
the substantive crime, regardless of whether the tool at issue is
used to gain entry to the building or to complete the underlying
theft. (Ibid.)
In reaching its conclusion, the court expressly disagreed
with two Fourth District decisions, People v. Diaz (2012) 207
Cal. App. 4th 396 and People v. Gordon (2001) 90 Cal. App. 4th
1409, superseded by statute, as noted in Kelly, 154 Cal.App.4th
at p. 966. The court explained that an interpretation of section
466 limited to items specifically made for breaking, entering, or
gaining access to a victim’s property is overly narrow and
inconsistent with the statutory language. (H.W., supra, at p.
944.) According to the appellate court, finding a statutory
requirement that the tool be used for “breaking” imposes a
limitation on liability eliminated from the crime of burglary long
ago, and that under California law a person may be convicted of
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IN RE H.W.
Opinion of the Court by Cuéllar, J.
burglary if he or she enters a store while it is open to the general
public with the intent to commit theft or a felony. (Id. at p. 945.)
The court reasoned that H.W. did just that: possessed and
used the pliers for the purpose of committing a theft inside of
Sears. Citing the evidence provided to the juvenile court that
H.W. used the pliers to remove the anti-theft tag from the jeans,
placed the jeans in his backpack, left the store without paying
for the jeans, and was apprehended with no credit cards, money,
or other means to pay for the jeans, the court concluded that
H.W. used the pliers for the “ ‘ “burglarious purpose” ’ ” of
stealing the jeans. (H.W., supra, 2 Cal.App.5th at p. 945,
quoting People v. Southard (2007) 152 Cal. App. 4th 1079, 1088.)
So the appellate court upheld the juvenile court’s determination,
finding there was sufficient evidence to sustain the possession
of burglary tools allegation. (H.W., at p. 945.)
H.W. challenges the Court of Appeal’s determination that
the pliers in his possession were an “other instrument or tool”
within the scope of section 466.
II.
The pliers in question are approximately ten inches in
total length, with a sharpened, approximately half-inch long
blade. We consider whether these pliers fall within the scope of
section 466 as an “other instrument or tool” and whether they
were possessed by H.W. with the intent necessary to establish
criminal liability under the statute. (§ 466.)
When we interpret statutes, our primary task is to
determine and give effect to the Legislature’s purpose in
enacting the law. (People v. Hubbard (2016) 63 Cal. 4th 378, 386;
Goodman v. Lozano (2010) 47 Cal. 4th 1327, 1332 [“In
interpreting a statute, our primary goal is to determine and give
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IN RE H.W.
Opinion of the Court by Cuéllar, J.
effect to the underlying purpose of the law”].) We first look to
the words of the statute, as they are generally the most reliable
indicators of the legislation’s purpose. (Ryan v. Rosenfeld (2017)
3 Cal.5th 124, 128; People v. Cottle (2006) 39 Cal. 4th 246, 254.)
To further our understanding of the intended legislative
purpose, we consider the ordinary meaning of the relevant
terms, related provisions, terms used in other parts of the
statute, and the structure of the statutory scheme. (Larkin v.
Workers’ Comp. Appeals Bd. (2015) 62 Cal. 4th 152, 157.) If the
relevant statutory language is ambiguous we may glean further
insight from appropriate extrinsic sources, including the
legislative history. (People v. Romanowski (2017) 2 Cal.5th 903,
909; People v. Zambia (2011) 51 Cal. 4th 965, 972.)
Originally enacted in 1850, the provision that became
section 466 has been amended multiple times, most recently in
2008. (Stats. 2008, ch. 119, § 1, p. 330.) The resulting provision
incorporates a mix of terms that range from straightforward to
opaque in a paragraph-long sentence devoid of any explicit
statutory subdivisions and addressing several related problems
involving tools that could facilitate felonies or misdemeanors. It
reads as follows: “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, or who shall knowingly make or alter, or shall
attempt to make or alter, any key or other instrument named
above so that the same will fit or open the lock of a building,
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IN RE H.W.
Opinion of the Court by Cuéllar, J.
railroad car, aircraft, vessel, trailer coach, or vehicle as defined
in the Vehicle Code, without being requested to do so by some
person having the right to open the same, or who shall make,
alter, or repair any instrument or thing, knowing or having
reason to believe that it is intended to be used in committing a
misdemeanor or felony, is guilty of a misdemeanor. Any of the
structures mentioned in Section 459 shall be deemed to be a
building within the meaning of this section.” (§ 466.)
H.W. points out that pliers such as those in his possession
are not expressly listed in the statute. Shoehorning them into
the statute by treating them as an “other instrument or tool,” he
contends, makes little sense given the explicit inclusion of only
vise grip and water-pump pliers. H.W. cites the amendments to
section 466 in 1984 (adding vise grip pliers, water-pump pliers,
screwdriver, slidehammer, slim jim, tension bar, lock pick gun,
floor-safe door puller, and master key), 2001 (correcting the
spelling of “vise grip pliers”), 2002 (including ceramic or
porcelain spark plug chips or pieces), and 2008 (adding bump
key) as instances where the Legislature could have easily
incorporated generic pliers but did not. (Stats. 1984, ch. 82, § 1,
p. 282; Stats. 2001, ch. 854, § 28, pp. 6992-6993; Stats. 2002, ch.
335, § 1, p. 1298; Stats. 2008, ch. 119, § 1, pp. 330-331.)
H.W. also contends that section 466’s “other instrument or
tool” provision must be read narrowly. Citing the ejusdem
generis principle of statutory interpretation, H.W. argues that
the general reference to other instruments or tools only
encompasses items similar –– which he defines as those tools
designed for breaking or entering –– to the enumerated tools,
such as screwdrivers and lock pick guns. He claims that the
pliers he possessed cannot be considered an “other instrument
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IN RE H.W.
Opinion of the Court by Cuéllar, J.
or tool” because they are dissimilar to the objects listed in the
statute. (§ 466.)
The People counter that the Legislature decided to include
items beyond those specifically listed by enacting a broadly
worded provision that could reasonably be read to include the
pliers in question here. Moreover, H.W.’s assessment of what
makes the enumerated tools similar may be overly narrow.
Devices like a screwdriver, vise grip pliers, water-pump pliers,
crow, or crowbar may be useful to break a lock or forcibly enter
a gate or door. But they may also be used to unscrew, pry, or
release property that is bolted down or otherwise secured. And
as H.W.’s counsel clarified at oral argument, a master key, lock
pick gun, and picklock are as useful to pick or force a lock
securing exterior entry into a building as they are to pick a lock
on a container or partition located within a building or store.
The enumerated tools are varied in their function and
capabilities. And to the extent there is a common thread
between them, it is that they are meant to defeat efforts to
secure property.
Nonetheless, even if we assume the People are right to
treat the pliers in H.W.’s possession as an “other instrument or
tool,” the question of H.W.’s intent proves pivotal in this case. A
statutory requirement limiting imposition of criminal liability to
individuals with the requisite criminal intent functions as a
crucial constraint on the imposition of criminal liability in most
penal statutes. (See e.g., People v. Morse (2004) 116 Cal. App. 4th
1160, 1166 [the mental state requirement is “meant to insulate
certain acts of innocent possession” from criminal possession].)
To understand its scope here, we must interpret the statute in
context.
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IN RE H.W.
Opinion of the Court by Cuéllar, J.
Here is the subjective offense element on which section
466 conditions criminal liability when an individual possesses
certain enumerated and similar tools: “intent feloniously to
break or enter into any building, railroad car, aircraft, or vessel,
trailer coach, or vehicle.” (§ 466.) One can scour the entire Penal
Code and only find this distinctive phrase in section 466. The
People posit the state of mind required by section 466 is an
intent to use the tool possessed for the commission of any theft
or other felony inside a building — the same intent required in
the burglary statute, section 459. This inference is somewhat
plausible given certain similarities between section 466 and
section 459. At common law, burglary was defined as a breaking
and entering into a dwelling of another in the nighttime with
the intent to commit a felony. (See People v. Sparks (2002) 28
Cal. 4th 71, 78.) The element of breaking was eliminated from
the crime of burglary when it was first codified in the 1850 Act
concerning Crimes and Punishments (Stats. 1850, ch. 99, § 58,
p. 235) and the Legislature subsequently amended the burglary
statute in 1858 to include entry with “intent to commit grand or
petit larceny or any felony” as an alternative to a forcible
breaking and entering. (Former § 58 as amended by Stats. 1858,
ch. 245, § 1, p. 206; see People v. Garcia (2016) 62 Cal. 4th 1116,
1131.) Enacted in 1872 along with section 459, section 466
refers to an “intent feloniously to break or enter” — language
reminiscent of the common law elements of burglary. And
section 466 incorporates “[a]ny of the structures mentioned in
Section 459” into its definition of a building.
Yet a closer look at section 466 supports the conclusion
that a narrower intent standard is most consistent with the
ultimate legislative purpose associated with this statute.
Unlike certain burglary tool statutes found in other states,
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IN RE H.W.
Opinion of the Court by Cuéllar, J.
section 466 does not merely prohibit possession of certain
devices with an intent to commit burglary or theft (see, e.g., Va.
Code Ann. § 18.2-94 [prohibiting the possession of “any tools,
implements or outfit, with intent to commit burglary, robbery,
or larceny . . . .”]), nor does it reference the use of tools to commit
theft, rather than breaking or entering. (Compare Pen. Code, §
466 with Colo. Rev. Stat. § 18-4-205(1) [“A person commits
possession of burglary tools if he possesses any explosive, tool,
instrument, or other article adapted, designed, or commonly
used for committing or facilitating the commission of an offense
involving forcible entry into premises or theft by a physical
taking . . . .”].)
What section 466 includes instead is an intent
requirement focused specifically on commission of a felonious
breaking or entry. Coupled with the statute’s list of tools that
seem primarily capable of facilitating entry despite someone’s
effort to secure or limit access to a structure or other location
referenced in the statute, the mention of breaking or entering in
the context of section 466 seems most consistent with a reading
that conditions criminal liability on a particular state of
mind — intent to use an “instrument or tool” to break or
otherwise effectuate physical entry into a structure in order to
commit theft or some other felony within the structure.
Whatever else the record establishes about H.W.’s actions
at the Sears store on the day that set this case in motion, it does
not support the conclusion that H.W. intended to use the pliers
to do anything other than remove the anti-theft tag from the
jeans. H.W. admits he entered the Sears store “with the intent
to commit larceny” and “used pliers to effectuate a petty theft.”
There is insufficient evidence here to support the section 466
allegation that H.W. possessed the pliers with “intent
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IN RE H.W.
Opinion of the Court by Cuéllar, J.
feloniously to break or enter into any building, railroad car,
aircraft, or vessel, trailer coach, or vehicle.” (§ 466.)
III.
Penal Code section 466 prohibits possession of certain
enumerated objects and other instruments or tools with “intent
feloniously to break or enter.” Even if we assume the pliers in
H.W.’s possession indeed qualify as an “other instrument or
tool,” what H.W. lacked is the intent required to establish
criminal liability under section 466 given what we can discern
from its words and structure. Instead, criminal liability for
possession of prohibited tools “with intent feloniously to break
or enter” requires a showing that the defendant intended to use
the instrument or tool possessed to break or effectuate physical
entry into a structure in order to commit theft or a felony within
the structure. The record here does not support the conclusion
that H.W. possessed the pliers with an intent to use them for
any purpose other than to remove the anti-security tag from the
jeans. The judgment of the Court of Appeal is reversed.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
11
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re H.W.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 2 Cal.App.5th 937
Rehearing Granted
__________________________________________________________________________________
Opinion No. S237415
Date Filed: March 28, 2019
__________________________________________________________________________________
Court: Superior
County: Sacramento
Judge: Stacy Boulware Eurie
__________________________________________________________________________________
Counsel:
Robert McLaughlin, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Catherine Chatman, Rachelle
A. Newcomb and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Robert McLaughlin
Law Office of Robert McLaughlin
31441 Santa Margarita Parkway, Suite A-135
Rancho Santa Margarita, CA 92688
(949) 280-8022
F. Matt Chen
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 445-9555