When a shoplifter stoops to stealing clothes, you gotta feel a little sorry for him or her.
And when he falls to the ground convulsing, it’s almost a tragedy. But when it turns out he used a special bag to get the merchandise through electronic sensors, that’s a different story.
And so a jury convicted the California man of burglary, grand theft, and possessing burglary tools. The Second District Court of Appeal reversed the “tools” conviction, but compassion had nothing to do with it.
Penal Code Section 446 includes items used to gain access into property, but some courts disagree whether that applies to tools used after a would-be criminal gets inside a property. The state Supreme Court is considering the question in In re H.W.
In the meantime, Linda — a transgender man who goes by the name James — strolled into a Macy’s department store, put a stack of jeans into a bag and walked out. A security guard witnessed the theft, and chased him down.
Shaw resisted, fell to the ground and started convulsing. Security took the bag, which had 11 pairs of True Religion jeans inside a secondary bag lined with foil.
At trial, the guard testified that the foil-lined bag — called a “booster bag” — was used to trick electronic sensors. Shaw was convicted of all charges and placed on probation for two years.
In People v. Linda Shaw, the defendant argued that the booster bag was not a tool under the statute. The Second District agreed.
The appeals court disagreed with the Third District decision in H.W., which said a pair of pliers used to cut security tags off a pair of jeans was a burglary tool. Instead, the justices followed People v. Diaz.
“We find the reasoning of Diaz to be more persuasive, and we agree with its holding that an ‘instrument or tool’ under section 466 is an item intended for use ‘to break into or gain access to property,’ not just intended for ‘use during the course of a burglary,” the panel said.