In re Terrence R.

Filed 8/29/06 In re Terrence R. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

The juvenile court sustained various charges filed under Welfare and Institutions Code section 600 in connection with the alleged theft of a vehicle by appellant Terrance R. (Terrance).[1] On appeal he contends that the court’s findings rest impermissibly upon involuntary statements to police by a third party, Abraham A. (Abraham). We hold that in the absence of an objection on that ground below, the claim of involuntariness has not been preserved for appeal. Nor does it affirmatively appear from the record that the failure of Terrance’s attorney to object to the evidence on that ground was prejudicial to the defense. However, we reverse the finding that Terrance possessed a burglary tool, for want of evidence that the key he used to operate the vehicle came within the terms of the governing statute, Penal Code section 466.

Background

Milpitas Police Officer Abbie Serrano testified that on the night of April 11, 2005, she was on patrol in an unmarked car when she saw a speeding Toyota with a broken taillight. She could see that the car was driven by a tall person and had one passenger whose “head was barely above the headrest . . . .”[2] She undertook to make a traffic stop, but when she turned on her lights and siren the Toyota did not stop. During the ensuing chase, she testified, the Toyota executed a U-turn during which it was forced to wait for an opening in traffic while positioned at a right angle to the patrol car. This gave Officer Serrano, as she testified, “a clear view of what the driver looked like.” At trial she identified Terrance as the driver.

The Toyota continued moving evasively at high speed until it collided with a parked car and came to a stop, whereupon the doors opened and its occupants fled. The passenger appeared to be a black juvenile wearing a black hooded sweatshirt. The driver ran to a wooden wall and jumped over it, losing himself to Officer Serrano’s sight. Additional officers arrived and searched for the fugitives. Two officers detained Terrance a few blocks from the site of the collision. Officer Serrano went to that location and identified Terrance as the driver.

Terrance was taken to the police station for questioning. The Toyota was found to have been stolen earlier in the day. Officer Serrano notified Terrance’s mother of his arrest. Later that night, Officer Serrano received a call from Terrance’s mother saying that Abraham had appeared at her house and that she suspected he was involved in the incident. When officers arrived, Abraham was wearing a black hooded tee shirt. His lower pant legs were sopping wet, as were his shoes and socks, and officers observed fragments of grass and brush on his clothing.

After arresting Abraham for violating a local curfew ordinance, officers took him to the police station, where they interrogated him for about an hour and a half. For the first hour he denied any involvement in the auto theft. However police then falsely told him that they had a witness who had seen him in the stolen car. A plainclothes officer masquerading as a citizen informant came into the room and told the interrogating officers that Abraham had been the passenger. Abraham then nodded his head affirmatively to the questions whether he was the passenger, whether Terrance was the driver, and whether Abraham had been hiding in the creek area to the rear of the houses where the hit-and-run collision occurred.

Officer Serrano testified that in interrogating Abraham she “employ[ed] different types of techniques in order to get him to change his story.” In addition to the “ruse” concerning the fictitious identification witness, she “used contact” by approaching him and placing her hand on his knee. She also told him that where he went that night depended on his talking; that he could go home that night, or if he continued lying, to juvenile hall; that he could walk away that night with just a citation in his hand; that if he were honest, she would cut him slack, but if he were not, she would not give him a break;[3] that she was getting fingerprints off the car and would come get him when he least expected it; and that she was filling out paperwork to take him to jail.[4]

Terrance testified that he was arrested while walking from a friend’s house to his home, and that he was not in the Toyota with Abraham. He denied telling an officer that he had seen another person running down the street. He also denied pretending, as officers circled the area, that he was about to enter a house. No affirmative evidence was offered to bear out the factual imputations of these questions.

Called by the defense, Abraham testified that on the night of April 11, 2005, he had been in night school until 9:30 or 10:00 p.m. He went to a bus stop to make the trip home, but a friend from a high school Abraham had formerly attended offered him a ride. As the friend was driving him home, the police got on them and told them to stop. At some point during the ensuing chase the driver told Abraham to start running when the car stopped. Abraham complied. He hid for some time “in a ditch” by a creek. Then, having nowhere else to go, he went to Terrance’s house, which was nearby, and which he had visited before. He knocked on the window, Terrance’s mom came out, and then the police arrived.

Abraham acknowledged that when officers interrogated him, he did not give them the account he related at trial. He explained that they said they already had Terrance, and Abraham “d[id]n’t want two people to go to jail.” He basically told them nothing about the events of the evening: “She asked me a lot of questions, and I was just going with the story. I was like I don’t know. I was just saying because I don’t want to say nothing.”

The court sustained charges of vehicle theft (Veh. Code, § 10851, subd. (a)), obstruction of a police officer (Pen. Code, § 148, subd. (a)(1)), hit and run driving (Veh. Code, § 20002, subd. (a)), and possession of burglar tools, to wit, a shaved key (Pen. Code, § 466). A charge of reckless driving while eluding a police officer (Veh. Code, § 2800.2, subd. (a)), was dismissed. Terrance filed this timely appeal.

Discussion

I. Involuntary Statement

A. Preservation of Point for Appeal

Terrance’s primary contention is that the extrajudicial statements by Abraham were procured by coercion, and were therefore involuntary and intrinsically unreliable as a basis for establishing Terrance’s guilt. Respondent notes that Terrance did not object to Abraham’s statements below on that ground. Defense counsel raised only a hearsay objection. Terrance replies that the admission of involuntary statements is a non-waivable defect, and that if it is waivable we must conclude that his attorney rendered ineffective assistance in failing to preserve the objection by asserting it below.

Terrance cites four cases for the proposition that an objection to evidence of coerced statements may be raised for the first time on appeal. In People v. Underwood (1964) 61 Cal.2d 113 (Underwood), the court held that involuntary statements could not be used for impeachment either of the defendant or of a prosecution witness whose trial testimony diverged from statements extracted from him by the police. “The same policy considerations which preclude the use of an involuntary statement of a defendant require that the prosecution be precluded from impeaching any witness by the use of an involuntary statement given as the result of pressures exerted by the police. Such a statement by a witness is no more trustworthy than one by a defendant, its admission in evidence to aid in conviction would be offensive to the community’s sense of fair play and decency, and its exclusion, like the exclusion of involuntary statements of a defendant, would serve to discourage the use of improper pressures during the questioning of persons in regard to crimes.” (Id. at p. 124.) The court noted that trial counsel “did not make a sufficient and timely objection” to either the defendant’s or the witness’s coerced statements, but held that this did not preclude consideration on appeal. (Id. at p. 126.) “As we have seen,” the court wrote, “special policy considerations preclude the use of involuntary statements, the evidence was uncontroverted that the prior statements of defendant and Wisdom were coerced, and the cumulative effect of the errors was prejudicial.” (Ibid.)

The court followed Underwood four years later with In re Cameron (1968) 68 Cal.2d 487, 503 (Cameron), which held that where the involuntariness of a confession appeared “as a matter of law,” and where the defendant’s failure to raise it on direct appeal was excusable, the defendant could raise point for first time by habeas petition. (Cf. id. at p. 506 (dis. opn. of Mosk, J.) [criticizing majority’s analysis on ground that failure to object appeared tactically motivated].) In People v. Cahill (1994) 22 Cal.App.4th 296, the court rejected a waiver argument on the ground, among others, that “because ‘special policy considerations preclude the use of involuntary statements,’ review of the admissibility of such statements based on the evidence that is not in conflict is permitted despite the lack of a timely objection.” (Id. at p. 310, fn. 3, quoting Underwood, supra, 61 Cal.2d at p. 126.)

The current vitality of these cases is cast in some doubt, and their scope surely limited, by three more recent cases. In People v. Kelly (1992) 1 Cal.4th 495, 519 (Kelly), the court held that a defendant had not preserved for appeal his claim of error in the admission of an involuntary confession. The court acknowledged the rule in Cameron, supra, 68 Cal.2d at page 503, that such a point can be raised on appeal for the first time when involuntariness appears “as a matter of law.” (Kelly, supra, 1 Cal.4th at p. 519, fn. 5.) The court then observed, “We need not decide whether that rule has survived in light of subsequent authority and the development of the law of ineffective assistance of counsel, for our review of the record convinces us that the confession was not involuntary as a matter of law.” (Ibid.) In People v. Mayfield (1993) 5 Cal.4th 142, 172, the court cited Kelly--but not Cameron, Underwood, or any of their progeny--in holding certain claims of involuntariness not available on appeal.

The most recent case on this subject is People v. Kennedy (2005) 36 Cal.4th 595, 611-612 (Kennedy), where the Supreme Court held that objections based on the alleged involuntariness of a witness’s pretrial statements had been forfeited. The court did not mention any of the cases we have cited, but it did quote In re Seaton (2004) 34 Cal.4th 193, 198, a case involving other types of constitutional challenges, for the proposition that the requirement of predicate trial objections applies not only to “ ‘claims based on statutory violations,’ “ but also to those “ ‘based on violations of fundamental constitutional rights. [Citations.]’ “ (Kennedy, supra, 36 Cal.4th at p. 612.) The court went on to declare, “This rule applies equally to any claim on appeal that the evidence was erroneously admitted, other than the stated ground for the objection at trial.” (Ibid.; see People v. Partida (2005) 37 Cal.4th 428, 435-436 [defendant could not argue evidence should have been excluded on due process grounds varying from state-law objection asserted below, but defendant could argue that consequences of state-law error were so serious as to deprive him of due process].)

It appears that Kennedy is squarely on point in the sense that the issue presented there was indistinguishable from the one before us. There as here, defense counsel objected to the challenged evidence on hearsay grounds but lodged no constitutional objection. Thus, although the court made no mention of its arguably contrary earlier decisions, we must view it as impliedly overruling those decisions insofar as they might support Terrance’s position here.

We conclude that the admission of the allegedly involuntary statements cannot itself be assigned as error on this appeal.

B. Ineffective Assistance

Anticipating the conclusion reached in the preceding section, Terrance argues that his trial attorney rendered ineffective assistance by failing to object to Abraham’s statements on the ground that they were involuntary. To prevail on such a claim, the defendant must identify acts or omissions by his attorney that “fell below an objective standard of reasonableness” and must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (People v. Dickey (2005) 35 Cal.4th 884, 907.) Such a claim typically involves some conduct by counsel, most often a failure to object to some objectionable evidence or other matter that the defendant claims was harmful to his case. The central question is usually whether the challenged conduct was the result of a lapse of competence, or of a deliberate tactical decision. If the latter, the claim of ineffective assistance will probably fail.[5] Indeed, unless the absence of a tactical justification appears on the face of the appellate record, a claim of ineffective assistance cannot succeed on direct appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [claim can succeed only if “ ‘counsel was asked for an explanation and failed to provide one, or . . . there simply could be no satisfactory explanation’ “].) Where the lack of a tactical reason does not affirmatively appear, the defendant may establish his claim of ineffective assistance only by a means, such as habeas corpus, that permits the introduction of extrinsic evidence.

We are far from certain that the present record establishes the lack of a satisfactory tactical explanation for counsel’s failure to object to the evidence of Abraham’s assertedly involuntary statements to police. Those statements were not necessary to identify Terrance as the driver of the stolen Toyota. Officer Serrano testified unequivocally that she saw Terrance behind the wheel. She identified him in the field, and again in court, as the driver. Given this testimony, counsel may have concluded that evidence of Abraham’s reluctant (and silent) identification of Terrance posed little risk and offered a slight possibility of raising a doubt about the officer’s testimony. Officer Serrano’s vigorous efforts to secure corroboration from Abraham might have been viewed by a factfinder as reflecting an excess of zeal on the officer’s part--an excess that might also lead her to identify defendant with an outward certitude not justified by her actual observation. Counsel may thus have felt that the arguably coercive interrogation of Abraham was more likely to raise a reasonable doubt than it was to overcome one.

This hypothesis is not invalidated by the fact that counsel did object, albeit on other grounds, to Abraham’s statements. The ground he chose was hearsay, an objection which, if sustained, would only have barred reliance on Abraham’s statements for the truth of the matters asserted, i.e., their tendency to incriminate Terrance. The statements would have remained admissible for other purposes. The trial court apparently overruled the objection--subject to a later motion to strike--on the ground that the statements were admissible to impeach Abraham’s anticipated trial testimony. Counsel might have viewed this as the most desirable outcome, placing evidence of the arguably overzealous interrogation before the court, while obliging it not to consider the statements for the truth of the matters asserted, i.e., as evidence that Terrance was the driver.

We need not elaborate the point further, however, because this tactical explanation for counsel’s conduct is entirely our own; no such explanation has been offered by respondent. Respondent purports to offer a tactical rationale for counsel’s failure to object on grounds of involuntariness, but that rationale consists entirely of the notion that an objection would have been meritless because Abraham’s statements were not in fact involuntary. Since respondent appropriately argues the merits of the objection elsewhere in its brief, the recapitulation of that argument in the guise of a tactical justification appears to be a waste of ink, paper, and time. The question of a tactical explanation only becomes relevant where the objection, if made, would (or should) have been sustained. Where respondent can offer no such explanation, we think a candid concession to that effect would be more in order than the routine assertion of a cut-and-pasted pseudo-rationale adding nothing to an understanding of the issues. Here, the only tactical explanation yet offered is the one we have just set out. As a result, Terrance has had no occasion to respond to the point. We will therefore not rely on it.

We nonetheless find it unnecessary to reach the merits of the posited objection because it is impossible to conclude on this record that admission of Abraham’s statements was prejudicial. In Strickland, the court encouraged lower courts to bypass the question whether counsel’s performance was deficient in the absence of colorable prejudice: “The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.” (Strickland, supra, 466 U.S. at pp. 697.) The last clause undoubtedly refers to the court’s preceding observation that excessive judicial scrutiny of attorney performance can actually impair the interests of defendants and society by “distract[ing] counsel from the overriding mission of vigorous advocacy of the defendant’s cause,” “encourag[ing] the proliferation of ineffectiveness challenges,” producing “a second trial, this one of counsel’s unsuccessful defense,” “dampen[ing] the ardor and impair[ing] the independence of defense counsel, discourag[ing] the acceptance of assigned cases, and undermin[ing] the trust between attorney and client.” (Id. at pp. 689-690.)

This is a case in which the apparent lack of prejudice counsels strongly against reaching the question of counsel’s effectiveness. Even if Abraham’s statements could have been excluded from evidence on the ground urged by appellant, and even if trial counsel lacked any good reason for failing to seek their exclusion, the present record does not establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (People v. Dickey, supra, 35 Cal.4th at p. 907.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) However, “a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” (Id. at p. 693; see Woodford v. Visciotti (2002) 537 U.S. 19, 23-24 [circuit court erroneously inferred mistaken application of standard from California Supreme Court’s “occasional shorthand reference[s]” to “ ‘probable’ “ more favorable result].)

We do not believe the exclusion of Abraham’s arguably involuntary statements would have been at all likely to produce a different result; nor does their admission undermine our confidence in the outcome that was actually reached. Our primary reason for this conclusion has already been mentioned: Abraham’s statements bore only on the issue whether Terrance was the driver of the stolen car, but Terrance was reliably identified as the driver, quite apart from those statements, by Officer Serrano’s testimony that she clearly saw his face when he was forced to stop in front of her car while executing a U-turn.

Terrance contends that Officer Serrano’s identification was not credible: “The circumstances of that observation were so improbable as to be meaningless without corroboration. It is simply not possible to see through a windshield and a window at night, in the glare of headlights and emergency lights, especially while one is attempting to cross over into oncoming traffic. The paucity of evidence concerning distance, duration, and visibility underscores the essential need for corroborative evidence. Without the corroboration of Abraham’s statement, the court m[ight] well have been unpersuaded by this identification, in which the outcome of the case would have been radically different.”

This argument cannot withstand scrutiny. The first sentence asserts two factual propositions, one contrary to the evidence at trial and the other rendered unlikely by basic principles of optics. The suggestion that Officer Serrano’s view was obscured by the glare of her own lights could only be borne out if it appeared that the window of the stolen car was so situated that it would reflect her headlights, emergency lights, or both back into her eyes. While this is not impossible, it can hardly be assumed, any more than one can assume that a bullet fired at a steel plate will ricochet back and hit the one who fired it. Indeed, the reflection of glare from her own lights back into her vehicle may have been an optical impossibility since she testified that her “patrol car was almost at a 90 degree angle with the suspect’s vehicle.” (Italics added.) Since the angle of incidence equals the angle of reflection, anything other than a 90-degree angle--in either a vertical or horizontal axis--would tend to reflect her lights away from her line of sight.

Second, the quoted argument supposes that Officer Serrano was too busy “cross[ing] over into oncoming traffic” to get the good look she testified she got. On the contrary, we think that in the absence of contrary evidence it may be supposed that an active police officer is both a highly competent driver and a unusually good observer, and quite capable of noting the features of a fleeing suspect while maneuvering her own vehicle in his pursuit.

Moreover, Terrance’s assertions suppose that Officer Serrano testified falsely, or at best inaccurately, when she said she got a good look at the driver and when she positively identified Terrance as that person. In the absence of some concrete reason to credit this hypothesis, we can grant little weight to the possibility that the trial court might have done so. So far as we know, the only basis to argue that she might have testified inaccurately--or at least overzealously--is the very evidence Terrance now contends should have been excluded, i.e., her considerable efforts to secure corroborating statements from Abraham. Had those efforts been excluded entirely from evidence, we see no basis whatever on which to question the veracity of her testimony.

Terrance also asserts a lack of supporting details concerning the circumstances of the identification. If the record bore out this characterization it would still not establish that the admission of Abraham’s statements prejudiced Terrance. But the record does not bear out the characterization; there was a good deal of evidence concerning the relative positions of the vehicles when Officer Serrano’s sighting was made. Many of these details are not immediately discernible from the reporter’s transcript alone, because they were set down in a sketch or diagram prepared by the officer while testifying. She also testified that she was able to estimate the driver’s height at six feet and saw that he was wearing a black leather jacket and black nylon cap. She radioed a description--presumably this one--when the driver fled the car on foot. Terrance matched that description. She testified that she had no doubt that Terrance was the driver, either at the time of her in-field identification or at the time of trial.

Nor did the challenged statements by Abraham furnish compelling or inflammatory evidence against Terrance. They were made only with extreme recalcitrance and after the interrogators had, by Officer Serrano’s admission, “employ[ed] different types of techniques in order to get him to change his story.” Defense counsel skillfully explored these weaknesses in his cross-examination of Officer Serrano. The very fact that she put Abraham under such pressure to assent to her version of events detracted from the probative weight of that assent, voluntary or not.

We conclude that the admission of Abraham’s statements does not undermine confidence in the outcome, i.e., no reasonable probability appears that in their absence a different result would have obtained. Accordingly, we do not reach the question whether an objection on grounds of involuntariness would have been meritorious.

II. Burglary Tool

Terrance contends that there was no evidence that he possessed a burglary tool in violation of Penal Code section 466 (section 466), as alleged in the petition and found by the trial court. The petition alleged that Terrance violated the statute by possessing “a(n) shaved key, with intent feloniously to break and enter a . . . vehicle.” Officer Serrano’s police report stated that a “shaved key” was indeed found in the ignition of the stolen vehicle. However, there was no testimony or other admissible evidence that a shaved key was found.[6] The pertinent evidence consisted entirely of (1) Officer Serrano’s testimony that she saw a “key in the ignition of the vehicle,” which she later showed to the registered owner; and (2) a stipulation that “a key recovered from the Camry” was shown to the registered owner, who “denied that the key was his” and “stated that all the keys he had were counted [sic] for.” The question is whether a “key” not belonging to the owner of a stolen vehicle may be found to be an instrument possession of which can violate section 466.

Respondent recites familiar principles governing review of trial court findings, i.e., that a reviewing court will not reweigh the evidence, will resolve all factual conflicts in favor of the judgment, and will sustain any finding supported by substantial evidence. But there was no evidentiary conflict here to resolve, no ambiguous or equivocal testimony to weigh, no credibility issues to decide. The relevant facts were undisputed: the driver of the stolen car--identified by other evidence as Terrance--used a “key” that did not belong to the car’s owner. The question thus appears to be one of law, i.e., whether a key not acquired from the owner, and not shown to have been made or modified for purposes of effectuating a burglary, comes within the terms of section 466 when it used to operate a stolen automobile.

Section 466 provides in relevant part, “Every person having . . . in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any . . . vehicle . . . , or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument named above so that the same will fit or open the lock of a . . . vehicle . . . , without being requested to do so by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of a misdemeanor.”

The statute expressly proscribes the possession, with the requisite intent, of two types of keys: “master keys,” and keys that have been made or altered to open a vehicle without authorization. A “master key” is “a key designed to open several different locks.” (Merriam-Webster’s Collegiate Dict. (10th ed. 1999), p. 716.) There was no competent evidence here that the key found in the Toyota had been designed for this purpose. Nor was there any evidence that it had been altered or made to facilitate car burglaries. For all the evidence shows, Terrance had taken a factory Toyota key and tried it on various cars until he found one it fit.[7] Accordingly the key mentioned in the stipulation could not be found to be among the instruments specifically enumerated in the statute.

Respondent cites People v. Gordon (2001) 90 Cal.App.4th 1409, 1412 (Gordon), for the proposition that the phrase “ ‘other instrument or tool’ “ in section 466 applies to all “ ‘keys or key replacements.’ “ That case held that under the statute as then worded, pieces of spark plug designed to break into a car were not “ ‘other instruments or tools’ “ within the contemplation of section 466. (Gordon, supra, 90 Cal.App.4th at pp. 1412-1413.) In reaching that conclusion it relied on the constructional rule known as “ejusdem generis“ (ibid.), the utility of which we have recently questioned. (O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1461-1462 (O’Grady).) The doctrine holds that “ ‘ “where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.” ‘ “ (Id. at p. 1461.) The difficulty is that this supposition is not always accurate--it is sometimes obviously inaccurate in light of the words actually used by the Legislature--and even when it is accurate, it begs the real question, which is what characteristic defines the class the Legislature intended to reach. (See id. at p. 1462 [“Ejusdem generis, with its emphasis on abstract semantical suppositions, may do more to obscure than disclose the intended scope of the clause”].)

For present purposes, we think a surer guide is found in the maxim expressio unius exclusio alterius est, under which “the enumeration of things to which a statute applies is presumed to exclude things not mentioned.” (O’Grady, supra, 139 Cal.App.4th at p. 1443.) Here of course the statute expressly extends beyond the things mentioned to “other instrument[s] or tool[s]” possessed “with intent feloniously to break or enter . . . .” (§ 466.) With respect to keys, however, the explicit inclusion of two types--master keys and altered keys--implies that the Legislature did not intend to bring ordinary, unaltered keys within the reach of the statute. Had it meant to do so, it need only have dropped the qualifier “master” where the word “key” first appears.

Nor is an intent to exclude ordinary, unaltered keys from the statute so obviously irrational or absurd that it cannot be attributed to the Legislature. Many if not most people spend many of their waking hours with keys in their possession, either to a vehicle, a home, or both. If unaltered keys were proscribed by section 466, a large percentage of the population would commit the actus reus of the offense every day by leaving home with keys in purse or pocket. Of course the crime could not be established without proving the requisite mental state, but the Legislature could quite rationally conclude that the possession of an ordinary key should not be enough to support conviction under the statute, and that the unaltered nature of a key should be a complete defense to any such charge, regardless of the possessor’s mental state.

We conclude that the failure to prove the key was “shaved” is fatal to the charge alleged in count 5 of the petition. The failure of proof precludes retrial and compels dismissal of the charge.

Disposition

The order sustaining the allegations of the petition is reversed as to count 5 with directions to dismiss that count. In all other respects the judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] Appellant’s first name appears in the record as both “Terrance” and “Terrence.” We adopt the former spelling, which appears to predominate and is used by counsel for appellant.

[2] Officer Serrano testified that when she later encountered Abraham, the suspected passenger, she estimated his height at five feet five inches. The record contains no testimony concerning Terrance’s height, but it is set forth in Officer Serrano’s police report as “6-0.” His height would of course have been apparent to the trial court through direct observation, and there is no suggestion of any discrepancy between her initial estimate of the driver’s height and Terrance’s actual height. Under the circumstances it may be inferred in support of the judgment that he was in fact tall.

[3] The question to Officer Serrano is transcribed here as, “Do you recall telling him, if you are honest, I will cut you slack. If you lie, I will give you a break?” But this is obviously not what the officer would actually have said, or at any event is not what she would have intended, or Abraham would have understood her to mean. The concluding clause is lacking a negative that is necessary to make it sensible.

[4] A palm print was lifted from the driver’s door of the car but failed to match either Terrance’s or Abraham’s fingerprints.

[5] We say “probably” because it is conceivable that counsel might cite a tactical justification no reasonable attorney would consider sound. As stated in the landmark case on this subject, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . .” (Strickland v. Washington (1984) 466 U.S. 668, 690-691 (Strickland).) A choice resting on a less-than-thorough investigation, or without an appreciation of plausible options, can constitute ineffective assistance even though tactically motivated.

[6] Nor was there any evidence defining “shaved key,” a term not employed in the statute. Numerous California cases use the term--indeed, nearly all of the cases using it are from this state--but none that cast light on its meaning are certified for publication. We have had to go to Oregon to find a definition we can cite, and even there it is set forth as a subject of expert testimony, not a term of generally accepted meaning. (See State v. Hite (2005) 107 P.3d 677, 679, fn. 1 [198 Or.App. 1] [officer testified that “a shaved key is a key that has been filed down, which facilitates its use to gain entry into other cars of the same make and model”].) The pervasive use of this slang term in legal proceedings seems doubly curious since the device thus described obviously constitutes a “master key,” a term the statute does use, and one with a dictionary definition, as set forth post.

[7] We suppose this to be highly unlikely in practice. Presumably auto manufacturers generate enough different key configurations to stack the odds heavily against opening one car with the key from another. Suppositions, however, are no substitute for evidence.