BILL ANALYSIS                                                                                                                                                                                                    







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

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          AB 2015 (Corbett)                                     5
          As Amended April 10, 2002
          Hearing date:  June 11, 2002
          Penal Code
          JM:mc

                             POSSESSION OF BURGLARY TOOLS 

                       CERAMIC OR PORCELAIN SPARK PLUG PIECES  


                                       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

          SEE COMMENT #4 FOR AMENDMENT TO CLARIFY INTENT TO ADD CERAMIC  
          SPARK PLUG PIECES, AND NOT COMMON OBJECTS THAT COULD BREAK  
          GLASS, TO THE LIST OF BURGLARS' TOOLS.







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



                                       PURPOSE
          
          The purpose of this bill is to add ceramic or porcelain spark  
          plug chips or 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  




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          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.)

           This bill  makes the possession of ceramic or porcelain<1> 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.  AB 2015 will allow justice to be served  
               without opening section 466 to include an overly broad  
               range of generic objects, such as rocks or pieces of  
               tile, that could be used to break windows. 

          -------------------------
          <1> Webster's New-World Dictionary (2nd College Ed. 1980)  
          defines ceramic as baked potter's clay.  It defines porcelain as  
          a hard, white nonporous variety of ceramic ware, made of kaolin,  
          feldspar and quartz or flint.



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          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.

          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[s] or  
          tool[s]" 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's tool just because it can accomplish the same purpose  
          as the listed tools.  A non-listed tool or device must be  
          similar to those specifically listed in section 466.   
          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.]"   




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               (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, emphasis added.)  

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





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          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 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  
          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.




          4.  Amendment as to Intent of This Bill to Only Add  
            Ceramic/Porcelain Spark Plug Pieces to Burglars' Tools in  
            Penal Code Section 466  

          Some reviewers of the bill have expressed concerns     about  
          adding to the list of burglars' tools an object that is not  
          ordinarily used as a tool for any legitimate purpose as a tool.   
          The other items in the list (pliers, slim jims, screw driver,  
          etc.) would generally be considered tools in the sense that they  




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          could be used for specific purposes in legitimate activities.   
          This bill considers an object that is not usable as a tool in  
          the common meaning of that term, as a ceramic chip from a spark  
          plug has lost its utility as an engine part.  Nevertheless,  
          although ceramic spark plug chips have lost utility for their  
          original intended purpose, it appears that they are singularly  
          effective tools for breaking car windows in a way that other  
          common objects are not.

          To address these concerns, the author has agreed that the bill  
          should be amended to include uncodified language.  This language  
          would clarify that the intent of the Legislature in enacting  
          this measure is to only add ceramic of porcelain spark plug  
          chips, not generic objects that could break glass, to the list  
          of burglars' tools in section 466.  Discussions with the  
          author's office indicate that it is not the intent of the author  
          to include common objects (rocks, pieces of metal, etc.) as  
          burglars' tools by the specific addition of ceramic spark plug  
          pieces.  Rather, the intent of this bill is to add to section  
          466 an object that is a specific and particularly effective tool  
          for the breaking of car windows.  


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