Kelly

When are a box cutter and a slingshot “instrument[s] or tool[s]” within the meaning of Penal Code section 466, which criminalizes the possession of burglary tools? The answer in this case is: certainly when they are in the possession of a convicted burglar and thief who intends to use them as such. Defendant Tracy Kelly appeals an order revoking his probation and sentencing him to a suspended three-year upper prison term conditioned on a one-year term in county jail. Defendant contends the evidence was insufficient to revoke his probation due to his possession of burglary tools and that his sentence violates Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ], We affirm.

BACKGROUND

Defendant’s Criminal History and His 2004 Conviction

Defendant is no stranger to the criminal justice system and has a record of theft-related convictions that span back to 1991, including a 1997 conviction for possession of burglary tools and a 2001 conviction for burglary. On April 1, 2004, defendant was charged with auto burglary, petty theft with a prior, possession of stolen property, and possession of a spark plug chip. The complaint alleged a prior felony…