gno.law

People v. Gordon

California Court of Appeal · D035265 · 2001-07-27 · Published · 109 Cal. Rptr. 2d 725 · 90 Cal. App. 4th 1409 · 2001 Cal. Daily Op. Serv. 6382 · 2001 Daily Journal DAR 7787 · 2001 Cal. App. LEXIS 585

The PEOPLE, Plaintiff and Respondent, v. MARK GORDON, Defendant and Appellant

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County
Trial judge
Robert F. O'Neill
Outcome
reversed in part — Affirmed in part and reversed in part.
Area
criminal
Panel
McINTYRE (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:19Z · confidence high

The trial court convicted Mark Gordon of burglary of a vehicle and possession of burglar’s tools, specifically finding that ceramic spark plug pieces constituted burglar’s tools under Penal Code section 466. The Court of Appeal reversed the possession of burglar’s tools conviction, holding that the items did not fall within the statutory definition, while affirming the burglary conviction.

Ruling reviewedStandardThe courtThe model
Conviction for possession of burglar’s tools under Penal Code section 466 based on possession of ceramic spark plug pieces.
“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.”
de novoerroragree with court
The court correctly applied the ejusdem generis rule of construction to interpret the statutory phrase 'other instrument or tool.' By restricting the general term to items similar to the specific tools listed (which are for picking locks or prying, not breaking glass), the court properly concluded that spark plug pieces do not qualify. The reliance on Cook v. Superior Court supports this strict interpretation of criminal statutes.
Jury instruction on requisite intent for possession of burglar’s tools.
“Thus, we reverse Gordon’s conviction for possession of burglar’s tools, which renders his second contention moot.”
mixednot reachedagree with court
The court did not address the merits of the jury instruction error regarding intent because it reversed the underlying conviction for possession of burglar’s tools. This is a standard procedural outcome where the reversal of the substantive charge renders related instructional challenges moot.

Authorities

  • relied: Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116 — Defines the ejusdem generis rule of construction, stating that general terms following specific items are restricted to things similar to those enumerated.
  • relied: Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142 — Supports the application of the ejusdem generis rule, restricting general terms to items similar to specifically enumerated ones.
  • relied: People v. Thomas (1945) 25 Cal.2d 880 — Establishes that the ejusdem generis rule is applied with stringency when construing criminal statutes.
  • relied: Cook v. Superior Court (1970) 4 Cal.App.3d 822 — Holds that a device not similar to specifically enumerated items in a criminal statute does not fall under the general catch-all phrase, specifically regarding tear gas devices.

The appellate opinion: sound — The opinion is sound because it correctly applies the ejusdem generis canon of construction to a criminal statute, relying on established California precedent (Cook, Thomas) to limit the scope of 'other instrument or tool' to items similar to the specific list. The reasoning directly addresses the People's argument about functional equivalence by clarifying that similarity of the device itself, not just its effect, is the legal standard.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

A jury convicted Mark Gordon of vehicle burglary (Pen. Code, § 459) and misdemeanor possession of burglar's tools (§ 466), the latter based on two ceramic spark plug pieces found in his pocket. The Court of Appeal held that, under the rule of ejusdem generis applied stringently to penal statutes, ceramic spark plug pieces are not an "other instrument or tool" similar to the keys, picks and prying tools enumerated in section 466, reversed the section 466 conviction, found the related instructional claim moot, and in the unpublished portion rejected challenges to CALJIC Nos. 17.41.1 and 2.90, affirming the judgment in all other respects.

Ruling reviewedStandardThe courtThe model
Conviction under Penal Code section 466 for possession of burglar's tools based on ceramic spark plug pieces (whether such pieces are an "other instrument or tool" within the statute)
“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.”
de novoerror (statutory interpretation)agree with court
The question is one of statutory construction reviewed independently. Every item enumerated in section 466 is a key, key substitute, lock pick, or prying/pulling tool; none functions by breaking glass. Under ejusdem generis, which People v. Thomas requires to be applied stringently in criminal statutes, the general phrase "other instrument or tool" is limited to devices similar in kind to those listed, and Cook v. Superior Court is closely analogous in rejecting a functional-equivalence argument for a catch-all phrase following a specific list. The court correctly rejected the People's argument that functional equivalence (quiet entry) suffices; the test is similarity of the device, not of purpose. The result is also consistent with the rule of lenity, though the court did not invoke it. A counterargument exists that the list is heterogeneous (screwdriver, pliers) and that the statute's evident purpose is to reach any tool possessed with felonious intent to break or enter, but the court's construction is the better reading of the text as it then stood.
Jury instruction on the intent element of possession of burglar's tools (Gordon's second contention)
“Thus, we reverse Gordon’s conviction for possession of burglar’s tools, which renders his second contention moot.”
unclearnot reachedagree with court
Because the section 466 conviction was reversed on the statutory ground, the claimed instructional error as to that count could have no further effect, and the court properly declined to reach it.
Instruction of the jury with CALJIC No. 17.41.1 (challenged as infringing the Sixth Amendment right to jury trial)
“In the unpublished portion of this opinion, we address and reject Gordon’s third and fourth contentions.”
de novocorrectunsure
The reasoning appears only in the unpublished portion, which is not reproduced; the opinion states only that the contention was rejected. Instructional claims are ordinarily reviewed de novo. Without the court's analysis, no independent assessment is possible.
Instruction of the jury with CALJIC No. 2.90 on reasonable doubt (challenged as undermining the presumption of innocence and lowering the burden of proof)
“In the unpublished portion of this opinion, we address and reject Gordon’s third and fourth contentions.”
de novocorrectunsure
The analysis is in the omitted unpublished portion. Challenges to the revised CALJIC No. 2.90 had been uniformly rejected by California courts by 2001, so the result is almost certainly correct, but the court's reasoning cannot be evaluated from the text provided.

Authorities

  • relied: Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116 — Ejusdem generis applies when general terms follow a list of specific items (or vice versa) and restricts the general term to things similar to those specifically enumerated.
  • relied: Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142 — Under ejusdem generis, application of a general term is restricted to those things that are similar to those enumerated specifically.
  • relied: Martin v. Holiday Inns, Inc. (1988) 199 Cal.App.3d 1434 — Source of the quoted formulation that general words following specific enumerations are restricted to things similar to those enumerated.
  • relied: People v. Thomas (1945) 25 Cal.2d 880 — In construing criminal statutes, the ejusdem generis rule is applied with stringency.
  • relied: Cook v. Superior Court (1970) 4 Cal.App.3d 822 — A catch-all phrase ("other form of device") following a list of specific weapons did not reach a mace/tear gas canister because the device was not similar to the enumerated items; functional equivalence does not satisfy ejusdem generis.

The appellate opinion: sound with gaps — The court correctly framed the issue as one of ejusdem generis, applied the stringent version of the canon required for penal statutes, and used Cook as a close analogue to reject the People's functional-equivalence theory, producing a textually sound result that was later addressed by legislative amendment rather than judicial disagreement. It did not, however, confront the heterogeneity of the enumerated list (e.g., screwdrivers and pliers, which can also be used to break glass), the statute's legislative purpose, or the rule of lenity, and the unpublished portion leaves the instructional rulings unexplained in the text provided.

How this analysis was made · dispute it

record incomplete

Opinion — McIntyre

*1411 Opinion

McINTYRE, J.

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 (all statutory references are to the Penal Code); (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.

Facts

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 CD’s, 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.

*1412 Discussion

I

Ceramic Pieces of a Spark Plug Do Not Qualify as Burglar’s Tools Under Section 466

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.) Moreover, “[i]n construing criminal statutes, the ejusdem generis rule of construction is applied with stringency. [Citation.]” (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. (Cook v. Superior Court (1970) 4 Cal.App.3d 822, 828 [84 Cal.Rptr. 664].)

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 *1413 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. (Cook, at pp. 828-829.)

H, III *

Disposition

Gordon’s conviction for possession of burglar’s tools in count 2 is reversed. The judgment is affirmed in all other respects.

Kremer, P. J., and Haller, J., concurred.

The petitions of both appellant and respondent for review by the Supreme Court were denied October 31, 2001. Brown, J., was of the opinion that the petitions should be granted.

*

See footnote 1, ante, page 1409.

Cites, in this corpus

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