Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. 06F5678
MORRISON, J.
A jury convicted defendant of grand theft, unlawfully taking a vehicle and possession of burglary tools. (Pen. Code, §§ 487, subd. (a), 466; Veh. Code, § 10851, subd. (a).) The trial court found defendant had served a prison term (Pen. Code, § 667.5, subd. (b)), and sent him to prison for four years; he timely filed this appeal. We affirm.
FACTS
Just after 3 a.m. on July 18, 2006, two Redding police officers were checking local businesses in an area that had suffered recent thefts; one of the businesses in the area was North Valley Distributing. A Jeep towing a trailer passed them, with spools of wire in the trailer. The Jeep sped up, ran a stop sign and turned sharply onto another street, causing a spool to fall out of the trailer.
The Jeep and trailer caught another officer’s attention because “it was driving at a very high rate of speed. The tires were squealing, the trailer was fishtailing back and forth. And as it was in the center of the turn, one of the tires on the trailer blew out. And I also didn’t observe any lights on the trailer.” That officer then stopped the Jeep.
The driver was defendant’s father, Richard Kenyon, defendant was the front passenger, and defendant’s girlfriend, was in the back of the Jeep.
One spool was about four feet in diameter and so heavy one man could not lift it, although “possibly” one man could wheel it into the trailer with a ramp; the spool had a label addressed to North Valley Distributing.
An officer found “black men’s ski gloves” under the driver’s seat, and in “the cargo portion” of the Jeep he found “a pair of red 18-inch bolt cutters,” large “leather welding gloves,” “and a canvas bag containing miscellaneous tools as well as a red toolbox.” Bolt cutters are “commonly used” to cut locks, and can be used to cut chain-link fencing. An officer also found two large cups of ice water in the rear of the Jeep and an Igloo water container with ice water in it.
North Valley Distributing’s 10-foot chain-link fence had “been cut up and down and then pulled back” enough to allow a person to get through. A trail of freshly broken wood led directly from “beneath the storage rack” to the cut in the fence.
Defendant told an officer he knew nothing about the Jeep or trailer contents, that his father was giving defendant and defendant’s girlfriend a ride. Defendant’s father said he had seen the trailer by the side of the road, decided to take it, and attached it to his Jeep on his way to give his son and girlfriend a ride. The father described an odd route he had taken, explaining that he preferred side streets.
An owner of North Valley Distributing testified the spools in the trailer belonged to her business and were kept in the storage yard; when she responded to a police phone call that morning she found the fence had been cut.
The trailer’s owner testified his business is next door to North Valley Distributing, and he had left his empty trailer at his business the day before, July 17, 2006.
The spools of wire were worth over $400.
Defendant presented no evidence, but his counsel argued he was merely an innocent passenger.
DISCUSSION
I. Evidence of Theft
Defendant claims that no substantial evidence supports the convictions for theft of the spools and theft of the trailer. We disagree with this claim.
We view the facts and reasonable inferences therefrom in the light favorable to the verdicts. (People v. Barnes (1986) 42 Cal.3d 284, 303-304.) “The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Possession of recently stolen property may circumstantially support the inference that the possessor was the thief. (People v. McFarland (1962) 58 Cal.2d 748, 754 [“Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration”].) The jury was so instructed.
Just after 3 a.m., defendant and his father were found in a Jeep towing a recently stolen trailer with recently stolen spools of wire, including one that was so heavy that it would be difficult for one man to move it. In the Jeep were bolt cutters, capable of cutting a chain link fence. The Jeep was stopped near the business from which the spools had been stolen. The business had had its chain link fence cut that night, with a trail leading to area where the spools were kept.
The jury could reasonably infer that defendant and his father were working together, used the bolt cutters to cut the fence, moved the spools into the trailer taken from the business next door, and drove off. The jury was not required to credit the out-of-court statements of defendant and his father, which placed any blame on the father and exculpated defendant. Nor, in the absence of evidence that there was a ramp available, are we persuaded by defendant’s claim that defendant’s father could move the largest spool by himself.
Defendant relies on the following principle, from a case where the only evidence connecting a person to a stolen car was his fingerprint on the rear-view mirror:
“Ordinarily, the deduction to be drawn from the circumstances shown in evidence is for the trier of facts, but in this instance it is manifest that every fact proven is consistent with the reasonable conclusion that the appellant did not participate in the theft of the automobile. There is, therefore, a failure of proof in particulars necessary to conviction of the crime of grand theft, and the question is one of law for the court.” (People v. Flores (1943) 58 Cal.App.2d 764, 769.)
Here, it is not true that “every fact proven” is consistent with defendant’s innocence. Defendant was found in the stolen vehicle towing stolen goods which likely required two men to move them, close to the two victim businesses. His story (via pretrial statements), although possible, was not very plausible. In such a case we ask whether “‘there is evidence to support the implied finding of guilt as the more reasonable of the two hypotheses[.]’” (People v. Towler (1982) 31 Cal.3d 105, 118.) The evidence in this case was sufficient to support the jury’s finding that defendant participated in the thefts. (See, e.g., People v. Adams (1968) 259 Cal.App.2d 109, 112-115.)
II. Possession of Burglary Tools
In two related contentions defendant claims that no substantial evidence supports the finding that the bolt cutters were burglary tools within the meaning of Penal Code section 466 (§ 466), or that he possessed them with the intent to enter a building. We disagree.
The jury was instructed that in order to convict on this count it had to find defendant possessed “any instrument or tool,” “with the intent to use the tool to feloniously break or enter into any building, . . .”
Section 466 prohibits the possession of a number of named objects (e.g., “picklock, crow, keybit . . . slim jim, tension bar, . . . master key”) “or other instrument or tool with intent feloniously to break or enter into any building” or various vehicles. Defendant first asserts that bolt cutters are unlike the objects listed in the statute and invokes the principle of ejusdem generis.
The lead case applying ejusdem generis to section 466, curiously not cited by defendant, concluded that chips of spark plugs used to break car windows were unlike the listed objects:
“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.” (People v. Gordon (2001) 90 Cal.App.4th 1409, 1412-1413 (Gordon).)
Assuming we agreed with Gordon on its facts, a pair of bolt cutters is like the objects listed in section 466, as it can be used to cut chains and locks. Further, a subsequent case has rejected Gordon, and we agree with its analysis:
“First, while it is at least arguably questionable to classify ceramic chips as ‘tools’ or ‘instruments’ as those terms are commonly understood, we have no such difficulty placing a slingshot or a box cutter within that category. Second, we note the Legislature . . . amended section 466 the following year to specifically include ‘ceramic or porcelain spark plug chips or pieces’ among the enumerated burglary tools. . . . . The legislative response to Gordon undermines its conclusion that section 466 was intended to encompass only items that can be used to unlock, pry, or pull something open.
“We also believe Gordon’s analysis is problematic. . . . . When we must resort to rules of statutory construction such as ejusdem generis to clarify ambiguous language, we do so to effectuate the Legislature’s intent, not to defeat it. [Citation.]
“In Gordon, the court seems to have applied the ejusdem generis rule without identifying any ambiguity in section 466. We do not consider the language proscribing possession of ‘any instrument or tool’ with the specified felonious intent to be inherently ambiguous. But assuming that it is, Gordon thwarts, rather than effectuates, the plain legislative purpose to deter and prevent burglaries. [Citation.] . . . [¶]
“Under Gordon’s interpretation, section 466 authorizes law enforcement to apprehend only burglars and would-be burglars who employ a limited set of means to achieve their nefarious ends, . . . [W]e think the plain import of ‘other instrument or tool,’ and the only meaning that effectuates the obvious legislative purpose of section 466 includes tools that the evidence shows are possessed with the intent to be used for burglary.” (People v. Kelly (2007) 154 Cal.App.4th 961, 966-967.)
Finally, another recent case lists “bolt cutters” in a group of objects “that clearly fall within the scope of section 466[.]” (People v. Southard (2007) 152 Cal.App.4th 1079, 1090 (Southard).) We agree: A bolt cutter is eponymously designed to cut bolts, that is, thicknesses of metal, and can be used to cut locks, hasps and, as here, fences, to facilitate burglaries.
Defendant separately asserts that there was no evidence he possessed the bolt cutters with intent to enter into a building, and observes that no building had been broken into.
The jury could rationally find that the intent with which the tool was possessed was the intent to commit a burglary, although alert peace officers, patrolling for just such conduct in this area, apparently disrupted the plan. (See Southard, supra, 152 Cal.App.4th 1079, 1087 [no need to show recent burglary; Southard found with several tools, including mask and bolt cutters, and fled from police].)
III. Abstract
The Attorney General seeks a new abstract. He notes that it incorrectly states that the two-year term on count 2 (Veh. Code, § 10851, subd. (a)), is the “U” (upper) instead of the “M” (middle) term. He also states that because a one-year enhancement was imposed on count 1 for the prior prison term (Pen. Code, § 667.5, subd. (b)), the trial court should have stricken, not merely stayed, the same allegation as to count 2. Defendant makes no objection in his reply brief.
The abstract should be corrected to show that the term on count 2 is the “M” term. The prison term enhancement should have been stricken as to count 2, and we so modify the judgment. (See People v. Smith (1992) 10 Cal.App.4th 178, 181-182.)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a new abstract of judgment.
I concur: DAVIS, J.
I concur in the opinion except for part II where I concur in the result.
SIMS, Acting P.J.