BILL ANALYSIS SENATE COMMITTEE ON Public Safety Senator Bruce McPherson, Chair A 2001-2002 Regular Session B 2 0 1 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? (More) AB 2015 (Corbett) Page 2 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.) (More) AB 2015 (Corbett) Page 3 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. (More) 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 (More) AB 2015 (Corbett) Page 5 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 AB 2015 (Corbett) Page 6 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? ***************