People v. Gordon
| Decision Date | 27 July 2001 |
| Docket Number | No. D035265.,D035265. |
| Citation | 109 Cal.Rptr.2d 725,90 Cal.App.4th 1409 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Mark GORDON, Defendant and Appellant. |
Mark Gordon was convicted of burglary of a vehicle and possession of burglar's tools. Gordon appeals, contending (1) his conviction for possession of burglar's tools must be reversed because ceramic pieces of a spark plug are not burglar's tools within the meaning of Penal Code section 466 (); (2) his conviction for possession of burglar's tools must be reversed because the jury was misinstructed on the requisite intent; (3) his convictions for both offenses must be reversed because the jury was instructed with CALJIC No. 17.41.1, which effectively denied his Sixth Amendment right to a jury trial; and (4) his convictions for both offenses must be reversed because the jury was instructed with CALJIC No. 2.90, which undermined the presumption of innocence and lessened the prosecution's burden of proof.
In the published portion of this opinion, we address Gordon's first contention, and conclude that possession of ceramic spark plug pieces is not an offense under section 466. Thus, we reverse Gordon's conviction for possession of burglar's tools, which renders his second contention moot. In the unpublished portion of this opinion, we address and reject Gordon's third and fourth contentions. Accordingly, we affirm the judgment in all other respects.
On February 25, 1999, Frank Perez discovered Gordon pulling a car stereo speaker out of Perez's Ford Escort. Gordon put the speaker into a gray car parked next to the Escort, and Perez confronted him and demanded back his property. Gordon complied, taking the speaker, an amplifier, two containers of CDs, and a box holding Perez's wedding ring out of the gray car and setting them on the pavement. Then Gordon quickly drove away. Perez noted that the rear passenger window of his car had been shattered into pieces of about three quarters of an inch to an inch in size.
On April 7, 1999, San Diego Police Sergeant Ann-Marie Hiskes saw Gordon standing by a Volvo that had no license plates and talking to two other men who were inside the car. Hiskes got out of her patrol car and determined that the men were either removing or installing a stereo. Hiskes called a backup officer and then spoke with and searched Gordon. In searching him, she found two small pieces of porcelain from a spark plug in his pants pocket. At trial, San Diego Police Detective James Stewart testified that pieces of ceramic spark plugs are used by thieves to throw at car windows and shatter them, because the spark plug pieces make very little sound in doing so.
Gordon contends his conviction for possession of burglar's tools must be reversed because possession of ceramic spark plug pieces is not an offense under section 466. We agree.
Section 466 provides in pertinent part:
"Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vice grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, floor-safe door puller, master key, or other instrument or tool with intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, or trailer coach, or vehicle as defined in the Vehicle Code ... is guilty of a misdemeanor...."
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, 96 Cal.Rptr.2d 485, 999 P.2d 718.) 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, 278 Cal.Rptr. 614, 805 P.2d 873, quoting Martin v. Holiday Inns, Inc. (1988) 199 Cal.App.3d 1434, 1437, 245 Cal.Rptr. 717; see also Kraus v. Trinity Management Services, Inc., supra, 23 Cal.4th at p. 141, 96 Cal.Rptr.2d 485, 999 P.2d 718.) Moreover, (People v. Thomas (1945) 25 Cal.2d 880, 899, 156 P.2d 7.) 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. (...
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