Section 1704 | CALCRIM (Jury Instructions)

when (he/she) possessed the item. You do not all have to agree on which
one of those crimes (he/she) intended to commit.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[A vehicle is a device by which any person or property may be propelled,
moved, or drawn upon a highway, except a device moved exclusively by
human power or used exclusively upon stationary rails or tracks.]
[A trailer coach is a vehicle, other than a motor vehicle, designed for
human habitation or human occupancy for industrial, professional, or
commercial purposes, for carrying property on its own structure, and for
being drawn by a motor vehicle.]
[An aircraft is a manned contrivance used or designed for navigation of,
or flight in, the air requiring certification and registration as prescribed
by federal statute or regulation.]
New September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Penal Code section 466 encompasses additional conduct. This instruction addresses
only possession of burglary tools.
AUTHORITY
•
Elements. Pen. Code, § 466.
•
Intent Requirement. In re H.W. (2019) 6 Cal.5th 1068, 1076 [245 Cal.Rptr.3d 51,
436 P.3d 941].
•
Statute Prohibits Constructive Possession. People v. Bay (2019) 40 Cal.App.5th
126, 133 [253 Cal.Rptr.3d 26].
•
Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
•
Vehicle Defined. Veh. Code, § 670.
•
Trailer Coach Defined. Veh. Code, § 635.
•
Aircraft Defined. Public Utilities Code, § 21012.
COMMENTARY
Other Instrument or Tool
In addition to items expressly listed as burglary tools in Penal Code section 466, the
statute also contemplates a violation based on possession of some “other instrument
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1142

or tool.” In In re H.W., supra, 6 Cal.5th at p. 1076, the California Supreme Court
held that even if a nonenumerated item such as pliers qualified as an “other
instrument or tool,” a person may not be convicted of violating Penal Code section
466 without “a showing that the defendant intended to use the instrument or tool
possessed to break or effectuate physical entry into a structure in order to commit
theft or a felony within the structure.” For example, in In re H.W., pliers used to
remove a security tag, rather than to enter the store, were found not to be a burglary
tool.
1705–1749.
Reserved for Future Use
BURGLARY AND RECEIVING STOLEN PROPERTY
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