People v. Gordon

[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 In the unpublished portion of this opinion, we address and reject Gordon’s third and fourth contentions.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.