Shaw

*88 Defendant James 1 Shaw used a foil-lined bag to shoplift several pairs of jeans from a San Francisco department store. A jury convicted him of second degree burglary, grand theft, and possession of burglary tools. On appeal, he claims that his conviction for possession of burglary tools lacks substantial evidence because the foil-lined bag is not a burglary tool within the meaning of Penal Code 2 section 466. We agree.

*89 Although the Courts of Appeal that have addressed the issue have agreed that burglary tools under section 466 include items intended for use to gain access into property, they have disagreed whether burglary tools also include items intended solely to facilitate crimes committed once inside the property. The Supreme Court is currently considering a decision that is part of this disagreement. ( In re H.W. (2016) 2 Cal.App.5th 937 , 206 Cal.Rptr.3d 768 ( H.W. ) (review granted Nov. 22, 2016, S237415) . ) Pending a decision in H.W ., we are compelled by the language and history of section 466 to conclude that burglary tools are limited to items intended to be used to gain access into property. As there is no dispute here that Shaw did not intend to use the…