P. v. Osband

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Filed 7/24/20 P. v. Osband CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent,
v.
LANCE I'AN OSBAND,
Defendant and Appellant.
C089290
(Super. Ct. No. CR74780)
A jury convicted defendant Lance I’an Osband of first degree murder in 1987, and
the California Supreme Court affirmed the conviction in 1996. In January 2019,
defendant filed a petition for resentencing under Penal Code section 1170.951 and
requested the appointment of counsel. The trial court found that defendant was ineligible
for relief and denied the petition without appointing counsel or holding a hearing.
Defendant appeals, arguing (1) he made a prima facie showing of eligibility for
1 Undesignated statutory references are to the Penal Code.

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resentencing, and (2) the trial court should not have made its determination without first
appointing counsel.
Because the record clearly establishes that defendant is ineligible for resentencing,
any error in failing to appoint counsel is harmless, and we will affirm the trial court’s
order denying the petition.
BACKGROUND
Following the 1985 killing of Lois Skuse, defendant was charged with first degree
murder (§ 187) during a burglary (former § 190.2, subd. (a)(17)(vii)), robbery (former
§ 190.2, subd. (a)(17)(i)), and after raping her (former § 190.2, subd. (a)(17)(iii)), while
personally using a deadly weapon, a knife, in the killing (former § 12022, subd. (b)(1)).
(People v. Osband (1996) 13 Cal.4th 622, 652 (Osband).) He was further charged with
burglary (§ 459), robbery (§ 211), and forcible rape (§ 261, subd. (a)(2)), and it was
alleged that he personally used a knife in the commission of the robbery and rape (former
§§ 12022, subd. (b)(1)) & 12022.3, subd. (a).) (Osband, at p. 652.) Defendant was also
charged with attempting to murder Norma C. 16 days after he killed Skuse (§§ 187,
subd. (a), 664.) He was also charged with the burglary of the classroom in which Norma
C. was attacked (§ 459), with robbing her (§ 211), and with assaulting her with the intent
to rape her (§ 220). (Osband, at p. 653.) Each of those four charges also carried
allegations of infliction of great bodily injury (§ 12022.7) and personal use of a knife
(former § 12022, subd. (b)). (Osband, at p. 653.) The trial court later struck the weapon-
use enhancement allegations as to Norma C. (Id. at pp. 653, 701.)
The prosecution tried the case on the theory that defendant personally killed Skuse
and that he was guilty of first degree murder under two theories: deliberate and
premeditated murder or felony murder. (Osband, supra, 13 Cal.4th at p. 680.) The
evidence against defendant included the following: (1) his palm print and fingerprints
were found in several locations in Skuse’s apartment; (2) the blood type derived from a
semen sample found on Skuse matched defendant; (3) the blood types derived from blood

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samples found on defendant’s shoes matched both Skuse and Norma C.; and (4) track
impressions consistent with defendant’s shoes were found in several locations in Skuse’s
apartment. (Id. at pp. 654-657.) Defendant testified in his defense that he saw two men
carrying a television leave Skuse’s apartment and briefly went inside when he saw the
door ajar but did not see anyone in the apartment. (Id. at pp. 657-658.) Defendant was
identified by Norma C. for an attempted murder committed 16 days later with a similar
modus operandi. (Id. at pp. 655-656.)
The jury was instructed that it could find defendant guilty of first degree murder
“on a theory either of felony murder or of killing with malice aforethought, intent to kill,
premeditation, and deliberation.” (Osband, supra, 13 Cal.4th at p. 688.) The jurors were
not instructed on aiding and abetting liability or the natural and probable consequences
doctrine. As to the crimes against Skuse, the jury found defendant guilty on all counts
and found all the allegations true. (Id. at p. 653.) As to the crimes against Norma C., the
jury found defendant guilty on all counts and found the great-bodily-injury enhancements
true. (Ibid.) He was sentenced to death. (Id. at p. 652.)
On appeal, defendant claimed the trial court erred by failing to instruct the jury
that to find the felony-murder special circumstances true, it must find that he had the
intent to kill. (Osband, supra, 13 Cal.4th at p. 679.) The Supreme Court agreed that the
trial court’s failure to instruct on intent to kill was error under Carlos v. Superior Court
(1983) 35 Cal.3d 131, but found the error harmless beyond a reasonable doubt. (Osband,
at pp. 681-684.) The court concluded “that the method of killing ‘would preclude any
inference [that it] was accidental or unintentional’ [citation]; rather . . . ‘the only
reasonable conclusion the jury could have drawn was that defendant’ [citation] intended
to kill.” (Id. at p. 681.) The court reasoned that “no reasonable jury, properly instructed
under Carlos, would have failed to find intent to kill based on the evidence in this case,”
which included a deep stab wound to Skuse’s neck, the fact she was stabbed while lying
face down defenseless on the floor, and the “brutality of the assault” involved “force far

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in excess” of what was necessary to complete the other crimes of burglary, robbery, and
rape. (Id. at pp. 682-683.) The court stated, “While we do not know when defendant
obtained the murder weapon from the kitchen and carried it into the bedroom, the
medical evidence establishes to a near certainty that he harbored lethal intent at the
moment he used the knife.” (Id. at p. 682.) Finally, the court reasoned that because the
jury found defendant intended to kill Norma C. in finding him guilty of attempted murder
and because the crimes were very similar and committed in close succession, it was
“improbable that the jury would have found that he intended to kill Norma C. but that he
did not intend to kill Skuse” (Id. at p. 683.)
On January 31, 2019, defendant filed a pro se “Youthful Offender Prisoner”
notice, citing Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) and
section 1170.95, for resentencing on the murder conviction. In the petition, defendant
averred that a complaint or information had been filed against him that allowed the
prosecution to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine, and he had been convicted of murder under one of those
theories; he did not specify in the petition which theory applied. Defendant asserted there
was no proof he killed Skuse He did not assert any new facts or evidence to support his
petition. He requested that the trial court appoint him counsel for the resentencing
proceeding.
The trial court summarily denied the petition without first appointing defendant
counsel as requested. It concluded defendant failed to make a prima facie showing of
eligibility for resentencing because the California Supreme Court determined he was “the
actual killer” and “acted with intent to kill, beyond a reasonable doubt.” The trial court
observed: “Even under [Senate Bill] 1437, Penal Code §§ 187 and 189 still provide for
first degree murder based on a felony-murder theory, when the defendant was the actual
killer or acted with intent to kill.” The trial court concluded that because the Supreme
Court found defendant acted with intent to kill and because defendant was on death row

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under sentence of death and his conviction had not been overturned, “the issue of whether
he was the actual killer or acted with the intent to kill is now law of the case [citations],
and will not be revisited in a Penal Code § 1170.95 proceeding.” The trial court denied
the petition for resentencing and defendant filed a timely appeal from that order.
Defendant also filed with the trial court a response to the trial court’s order, which
the trial court deemed a request to commute defendant’s sentence and grant him a hearing
to present evidence relevant to a youthful offender parole hearing under People v.
Franklin (2016) 63 Cal.4th 261. The trial court ruled it had no authority to commute
defendant’s sentence and that defendant was not entitled to a Franklin hearing because he
was sentenced to death and would never be eligible for parole. Defendant did not appeal
from that subsequent order.
DISCUSSION
I
Defendant first contends he made a prima facie showing of eligibility for
resentencing under section 1170.95. We disagree.
Senate Bill 1437, which became effective on January 1, 2019, revised the felony-
murder rule in California “to ensure that murder liability is not imposed on a person who
is not the actual killer, did not act with the intent to kill, or was not a major participant in
the underlying felony who acted with reckless indifference to human life.” (Stats. 2018,
ch. 1015, § 1, subd. (f).) The bill amended section 188, which defines malice, and
section 189, which defines the degrees of murder to address felony-murder liability; it
also added section 1170.95, which provides a procedure by which those convicted of
murder can seek retroactive relief if the changes in the law would affect their previously
sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4; People v. Gutierrez-Salazar (2019)
38 Cal.App.5th 411, 417; People v. Lewis (2020) 43 Cal.App.5th 1128, 1134, review
granted Mar. 18, 2020, S260598 (Lewis).)

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Section 1170.95, subdivision (c) provides: “The court shall review the petition
and determine if the petitioner has made a prima facie showing that the petitioner falls
within the provisions of this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a
response within 60 days of service of the petition and the petitioner may file and serve a
reply within 30 days after the prosecutor response is served. These deadlines shall be
extended for good cause. If the petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show cause.”
To make a prima facie showing, all three of the following conditions must apply:
“(1) A complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine.
“(2) The petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder.
“(3) The petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (a).)
As relevant here, section 189 was amended to include new subdivision (e), which
provides: “(e) A participant in the perpetration or attempted perpetration of a felony
[including rape, robbery, and burglary] in which a death occurs is liable for murder only
if one of the following is proven:
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree.

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“(3) The person was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d) of Section 190.2.”
(Stats. 2018, ch. 1015, § 3.)
In People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review granted Mar. 18,
2020, S260493 (Verdugo), the court of appeal held that the trial court, in evaluating a
petition under section 1170.95, should determine from all readily ascertainable
information “whether there is a prima facie showing the petitioner falls within the
provisions of the statute.” The court reasoned: “Although subdivision (c) does not
define the process by which the court is to make this threshold determination,
subdivisions (a) and (b) of section 1170.95 provide a clear indication of the Legislature’s
intent. . . . [S]ubdivision (b)(2) directs the court in considering the facial sufficiency of
the petition to access readily ascertainable information. The same material that may be
evaluated under subdivision (b)(2) -- that is, documents in the court file or otherwise part
of the record of conviction that are readily ascertainable -- should similarly be available
to the court in connection with the first prima facie determination required by subdivision
(c).” (Verdugo, at p. 329.) The court further held that the superior court should examine
not only “the complaint, information or indictment filed against the petitioner; the verdict
form or factual basis documentation for a negotiated plea; and the abstract of judgment,”
(Id. at pp. 329-330) but also any “court of appeal opinion, whether or not published,
[because it] is part of the [defendant’s] record of conviction.” (Id. at p. 333; see Lewis,
supra, 43 Cal.App.5th at p. 1138, review granted [allowing the trial court to consider its
file and the record of conviction is sound policy].)
Defendant’s petition attached the judgment, an amended minute order reciting the
judgment, and his own declaration asserting he was not the actual killer. But the
California Supreme Court’s opinion in this case, which is part of the record of conviction,
precludes a finding of eligibility for resentencing. (See Verdugo, supra, 44 Cal.App.5th
at pp. 329-330, 333, review granted.) The trial court properly denied defendant’s petition

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for resentencing because the Supreme Court determined defendant was both the actual
killer and acted with intent to kill when he murdered Skuse (Osband, supra, 13 Cal.4th
at pp. 652-653, 680-681, 691-692, 737.)
Nevertheless, defendant argues the Supreme Court failed to adequately consider
the possibility that he was not the perpetrator of the murder but instead an aider and
abettor. His argument is unavailing. Although he is entitled to have the change in law
applied to the facts of his case, he is not entitled to relitigate those facts. He therefore
cannot make a prima facie showing that he “could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made effective January 1,
2019.” (§ 1170.95, subd. (a)(3).) He was both the actual killer and acted with intent to
kill within the meaning of section 189, subdivision (e).
II
Defendant further claims the trial court should not have denied his petition without
first appointing counsel for him. He argues section 1170.95 requires the trial court to
appoint counsel when requested by the defendant, and that the trial court must then
permit the parties to file additional documents before determining whether the defendant
has made a prima facie showing of eligibility. The People counter that section 1170.95
authorizes a trial court to make the initial determination of prima facie eligibility before
appointing counsel and holding a hearing on the petition.
Although at least two courts have held that the duty to appoint counsel under
section 1170.95, subdivision (c) does not arise until after the court determines the
petitioner has made the required prima facie showing (See Verdugo, supra,
44 Cal.App.5th at p. 330, review granted; Lewis, supra, 43 Cal.App.5th at pp. 1138-1140,
review granted), we need not decide the question because on this record, any error in
failing to appoint counsel was harmless beyond a reasonable doubt. As we have
explained, denial of the petition is dictated by the California Supreme Court’s decision in
this case, which held that defendant was the actual killer and harbored the intent to kill.

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Thus, defendant did not fall within section 1170.95’s resentencing provision because he
could be convicted of first degree murder under section 189 as amended by Senate Bill
1437. (§ 189, subd. (e).) Even if the trial court had appointed counsel, defendant would
be ineligible for resentencing.
Defendant argues the trial court should have given him the opportunity to prove he
was not the actual killer. But as we have explained, defendant may not now relitigate that
finding. Under the circumstances, the trial court’s failure to appoint counsel was
harmless beyond a reasonable doubt. (See People v. Cornelius (2020) 44 Cal.App.5th 54,
58, review granted Mar. 18, 2020, S260410.)
DISPOSITION
The order denying the petition is affirmed.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
HOCH, J.

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