BILL ANALYSIS                                                                                                                                                                                                    







                          SENATE COMMITTEE ON Public Safety
                             Senator Bruce McPherson, Chair     A
                                2001-2002 Regular Session       B

                                                                2
                                                                0
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          AB 2015 (Corbett)                                     5
          As Amended April 10, 2002
          Hearing date:  June 4, 2002
          Penal Code
          JM:mc

                  POSSESSION OF BURGLARY TOOLS - CERAMIC SPARK PLUGS  

                                       HISTORY

          Source:  City of Pleasanton Police Department

          Prior Legislation: SB 205 (McPherson) - Ch. 854, Stats. 2001  
          (technical changes)
                       AB 1895 (Wright) - Ch. 82, Stats. 1984
                              
          Support: Attorney General; California District Attorneys  
                   Association; California Peace Officers Association; San  
                   Bernadino County Sheriff

          Opposition:California Attorneys for Criminal Justice

          Assembly Floor Vote:  Ayes  67 - Noes  0



                                         KEY ISSUE
           
          SHOULD THE MISDEMEANOR OF POSSESSION OF BURGLARY TOOLS, WHICH  
          REQUIRES INTENT TO COMMIT A BURGLARY, BE EXPANDED TO INCLUDE  
          POSSESSION OF CERAMIC SPARK PLUG PIECES OR CHIPS?






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                                                          AB 2015 (Corbett)
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                                       PURPOSE
          
          The purpose of this bill is to add ceramic spark plug chips of  
          pieces to the list of items that may be defined as burglary  
          tools when possessed with the intent to commit burglary.
          
           Existing law  makes the possession of a picklock, crow, keybit,  
          crowbar, screwdriver, vise-grip plier, water-pump plier,  
          slidehammer, slim jim, tension bar, lock pick gun, tubular lock  
          pick, floor-safe door puller, master keys, or other instrument  
          or tool with the intent to break into any building, railroad  
          car, vessel, or vehicle a misdemeanor punishable by up to six  
          months in county jail, or a fine not to exceed $1,000, or both.   
          (Pen. Code  466.) 

           Existing law  makes the possession of a key, tool, instrument,  
          explosive, or device, or a drawing, print, or mold of a key,  
          tool, instrument, explosive, or device designed to open, break  
          into, or damage a coin-operated machine with the intent to  
          commit theft from such machine punishable by up to one year in  
          county jail, or by a fine of not more than $1,000, or by both.   
          (Pen. Code  466.3.)

           Existing law  provides that every person who, with the intent to  
          use it in the commission of an unlawful act, possesses a motor  
          vehicle master key, or a motor vehicle wheel lock master key, is  
          guilty of a misdemeanor.  (Pen. Code  466.5, subd. (a).)

           Existing law  provides that every person who, with the intent to  
          use it in the commission of an unlawful act, possesses a motor  
          vehicle key with knowledge that the key was made without the  
          consent of either the registered or legal owner is guilty of a  
          misdemeanor.  (Pen. Code  466.7.)

           Existing law  provides that every person who enters any house,  
          room, apartment, shop, store, warehouse, or other building,  
          vessel, aircraft, railroad car, trailer coach, camper, or  
          vehicle with the intent to commit theft or any felony is guilty  
          of burglary.  (Pen. Code  459.)




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           This bill  makes the possession of ceramic or porcelain spark  
          plug chips or pieces, with the intent to commit burglary, a  
          misdemeanor punishable by up to six months in county jail, or a  
          fine not to exceed $1,000, or both. 


                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               Automobile break-ins result in annual costs of  
               millions of dollars to California's citizens in the  
               form of personal property loss and increased insurance  
               rates.  Thieves and vandals are using a new burglar  
               tool of choice, pieces of ceramic or porcelain spark  
               plug chips, to break the window of an automobile  
               quickly and quietly in order to steal the car or  
               commit acts of random vandalism.  However, because  
               Penal Code 466 does not list sparkplug chips as a  
               burglar tool, there is confusion in the field and in  
               the courts, allowing one defendant to be charged with  
               a violation, while another is not.  AB 2015 will allow  
               justice to be served evenly.

          2.  How Ceramic Spark Plugs are Used in Auto Burglaries  

          Ceramic spark plug pieces are common tools for car burglars.   
          When a plug piece is thrown or swung at a car window, the window  
          typically shatters completely with very little sound.  (People  
          v. Gordon, supra, 90 Cal.App.4th 1409, 1411.)  Thieves have been  
          known to wear the ceramic part of a spark plug on a string as a  
          necklace for easy access and use.









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          3.  Appellate Court Decisions on the Issue Presented by This Bill 

           Penal Code section 466 lists a number of items, such as pliers,  
          screwdrivers, picklocks, crowbars, or "other instrument or tool"  
          which are "burglar's tools" when possessed with the intent to  
          commit burglary.   In People v. Gordon (2001) 90 Cal.App.4th  
          1409, the court found that an instrument is not a burglar tool  
          just because it can accomplish the same purpose as the listed  
          tools, but that the device must be similar to those specifically  
          listed.  Consequently, chips from spark plugs do not meet the  
          "other instrument or tool" provision of Penal Code section 466.

          The court in Gordon explained its decision:

               Ceramic pieces from a spark plug are not specifically  
               listed in section 466; thus, the issue is whether they  
               come under the meaning of "other instrument or tool"  
               as used in the section.  In making this determination  
               we are guided by the rule of construction known as  
               ejusdem generis--which applies when general terms  
               follow a list of specific items or categories, or vice  
               versa.  (Kraus v. Trinity Management Services, Inc.  
               (2000) 23 Cal. 4th 116, 141.)  Under this rule,  
               application of the general term is " 'restricted to  
               those things that are similar to those which are  
               enumerated specifically.' " (Harris v. Capital Growth  
               Investors XIV (1991) 52 Cal. 3d 1142, 1160, fn. 7  
               [citations omitted].)  Moreover, "in construing  
               criminal statutes, the ejusdem generis rule of  
               construction is applied with stringency. [Citation.]"   
               (People v. Thomas (1945) 25 Cal. 2d 880, 899.)  Thus,  
               the meaning of the words "or other instrument or tool"  
               in section 466 is restricted to a form of device  
               similar to those expressly set forth in the statute.   
               (Cook v. Superior Court (1970) 4 Cal. App. 3d 822,  
               828.)  

               The items specifically listed as burglar's tools in  
               section 466 are keys or key replacements, or tools that  




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               can be used to pry open doors, pick locks, or pull  
               locks up or out.  None of the devices enumerated are  
               those whose function would be to break or cut  
               glass--e.g., rocks, bricks, hammers or glass cutters,  
               and none of the devices listed resembles ceramic spark  
               plug pieces that can be thrown at a car window to break  
               it.  Nevertheless, the People liken a ceramic spark  
               plug piece to a "shaved" key because both provide for  
               quiet breaking and entering, and argue that a spark  
               plug piece is an "other instrument or tool" which  
               satisfies the statutory definition in section 466  
               because "it operates as effectively in breaking into a  
               vehicle as unlocking the vehicle door with a metal tool  
               . . . ." However, the test is not whether a device can  
               accomplish the same general purpose as the tools  
               enumerated in section 466; rather, the device itself  
               must be similar to those specifically mentioned.  Here,  
               a ceramic piece of a spark plug that can be thrown at a  
               car window is not similar to the burglar's tools listed  
               in the statute.  (See Cook v. Superior Court, supra, 4  
               Cal. App. 3d at pp. 828-829 [where the statute  
               prohibited possession of a revolver, pistol, fountain  
               pen gun, billy, riot gun or " 'other form of device . .  
               . intended for the projection or release of tear gas,'  
               " it did not apply to a mace/tear gas canister because  
               this device was not similar to the enumerated items].)   
               Accordingly, Gordon's conviction for possession of  
               burglar's tools under section 466 cannot stand.   
               [Citation omitted.]  (People v. Gordon, supra, 90  
               Cal.App.4th at pp. 1412-1413.)

          However, in In re Robert B. (2001) 93 Cal.App.4th 963, the  
          appellate court held that spark plug chips do fall into the  
          category of "other instrument or tool" for the purposes of Penal  
          Code section 466.  The California Supreme Court has granted  
          review in Robert B., on February 13, 2002, stating:  "The issues  
          to be briefed and argued shall be limited to whether possession  
          of chips from ceramic spark plugs violated Penal Code section  
          466, contrary to the holding in People v. Gordon (2001) 90  
          Cal.App.4th 1409."  The Supreme Court did not disturb the ruling  











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          in Gordon by its grant of review in Robert B.

          This bill could effectively render moot the grant of review of  
          Robert B.  Under this bill, possession of ceramic spark plug  
          pieces or chips, with intent to commit burglary, would  
          constitute the misdemeanor of possession of burglary tools.  The  
          Supreme Court in Robert B. is likely to consider the effect of  
          the general reference to "other instrument or tool" in the  
          burglary tool statute, in light of the very specific list of  
          items that are defined as burglary tools.   

          Further, it should be noted that the opposition to this bill by  
          the California Attorneys for Criminal Justice was that ceramic  
          spark plug pieces are included in the existing burglary tool  
          statute.  The decision in Gordon and the recent grant of review  
          in Robert B. may have limited the factual basis for that  
          argument.

          SHOULD THE LEGISLATURE AWAIT THE DECISION AND ANALYSIS OF THE  
          CALIFORNIA SUPREME COURT IN THE CASE OF IN ROBERT B., AS TO  
          WHETHER THE EXISTING LAW PROHIBITING THE POSSESSION OF BURGLARY  
          TOOLS INCLUDES CERAMIC SPARK PLUG PIECES (AND OTHER ITEMS NOT  
          SPECIFICALLY LISTED IN THE STATUTE), BEFORE IT ADDS MORE  
          SPECIFIC ITEMS TO THE LIST OF BURGLARY TOOLS?


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