People v. Osband

Page 26

55 Cal.Rptr.2d 26

13 Cal.4th 622, 14 Cal.4th 38A, 919 P.2d 640,

96 Cal. Daily Op. Serv. 5583,

96 Daily Journal D.A.R. 9137

The PEOPLE, Plaintiff and Respondent, v. Lance Ian OSBAND, Defendant and Appellant.

No. S005233.

Supreme Court of California.

July 29, 1996.

As Modified on Denial of Rehearing Oct. 17, 1996.

[13 Cal.4th 652] [919 P.2d 659]

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Tim Brosnan, Oakland, and Peter A. Leeming, Santa Cruz, under appointments by the Supreme Court, and Robin Packel, San Francisco, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, William G. Prahl and Ward

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A. Campbell, Deputy Attorneys General, for Plaintiff and Respondent.

THE COURT: ^*

Defendant Lance Ian Osband has been sentenced to death under the 1978 death penalty statute for murder.

In an information, defendant was charged with the murder on October 5, 1985, of Lois Minnie Skuse. (Pen.Code, § 187; all unlabeled statutory references are to this code.) It was also alleged that he used a knife in the killing. (Former § 12022, subd. (b).) Three special circumstances were alleged: that the murder was in the first degree and he committed it during a burglary (former § 190.2, subd. (a)(17)(vii)), during a robbery (former § 190.2, subd. (a)(17)(i)), and after raping Skuse (former § 190.2, subd. (a)(17)(iii)).

Defendant was also charged with the burglary of the Skuse residence (§ 459), and with the robbery (§ 211) and forcible rape (§ 261, subd. (a)(2)) of Skuse. It was alleged that he used a knife to commit the robbery (former § 12022, subd. (b)) and rape (§ 12022.3, subd. (a)).

Defendant was also charged with attempting to murder Norma C. 16 days after he killed Skuse. (§§ 187, subd. (a), 664.) He was further charged with the burglary of the classroom in which she was attacked (§ 459), with robbing her (§ 211), and with assaulting her with the intent to rape (§ 220). Each of these four charges also carried allegations of infliction of great bodily injury (§ 12022.7) and knife use (former § 12022, subd. (b)).

A jury found defendant guilty on all counts and all the allegations true, except for the knife-use allegations in the charges stemming from the attack on Norma C., following the trial court's decision to strike those allegations. It found that the murder of Skuse and the burglary of her apartment were offenses committed in the first degree. The burglary of Norma C.'s classroom was found to be in the second degree.

FACTS

I. The Guilt Phase.

A. The Prosecution's Case.

1. The Killing of Lois Skuse.

Just before noon on October 6, 1985, the son and daughter-in-law of 66-year-old Lois Minnie Skuse found her body on the floor of the bedroom of her Sacramento apartment. Her son first saw the body; he cried out "almost instantaneous[ly]" on entering the bedroom from a short hallway. As her daughter-in-law explained: "All of the drawers in her dresser had been dumped" on top of the body so that she and her husband could only "see her legs kind of halfway out from underneath the pile" formed by the drawers and clothing. She called to her husband not to touch anything because there might be fingerprints, and she summoned the police, who arrived while she was still on the phone. A coroner's deputy saw "one leg and part of another" protruding from underneath the pile.

The bedroom had been ransacked. In addition to the drawers and clothing atop Skuse's body, papers and boxes lay on the bed. Her purse's contents had also been emptied onto the bed, and her car keys and wallet were missing.

Skuse's television set was also missing. And the padlock to her garage was unlocked, which was unusual. A knife drawer in the kitchen was open, a position in which Skuse, a careful housekeeper, would not have left it. After Skuse died, her son and daughter-in-law moved a knife set of Skuse's to their house along with other personal effects. A police officer showed her daughter-in-law a photograph of a knife, or the item itself, and it was similar to the type found in that set. However, she could not say that a knife was missing from the set.

When the police permitted Skuse's son and daughter-in-law to reenter the home, they recovered $14,000 in envelopes in various

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hidden locations. Empty envelopes were scattered "all over the place."

The United States Postal Service mailed Skuse's wallet to her son and daughter-in-law. Those individuals received it about two weeks after the killing.

The coroner's deputy examined the scene. Skuse had "some fragments" of clothing on. "There was what appeared to be a pair of panties that had been either cut or ripped, where the crotch was not in its normal position with respect to where it should be. [p] The waistband was still around the waist...." The deputy collected samples of fluid from Skuse's pubic area.

An impression of defendant's palm print was found on one of the dresser drawers lying on the body--a police officer testified that he believed it was the topmost drawer in the pile, located near Skuse's head--and impressions of his fingerprints or thumbprints were found on a small turquoise tissue box located atop the dresser, on the tissue paper itself, and on an envelope and a box lid that were found on the bed. Shoe print impressions apparently formed by blood and consistent with those made by the type of shoe defendant owned were found in the apartment.

The pathologist who performed an autopsy on Skuse testified that he found a one-and-three-quarter-inch-deep V-shaped stab wound on the right side of her neck. It could have been caused by a serrated knife found near Skuse's head. The wound was not "a simple slit-like stab wound[, as] if one stabbed a knife in an apple...." Rather, it had "two arms to it, as if there were two separate stab wounds in the same area" or as if "movement had occurred while the knife went in one direction ... [and] was twisted slightly, and removed, making two cuts rather than one." If the product of a single insertion, its shape could also have been caused by movement by Skuse rather than twisting of the knife. It had almost completely severed her carotid artery, and was the cause of death, which would likely have occurred very quickly but not instantaneously.

In addition, the pathologist testified that a rib and various facial bones, including the upper jawbone, were broken, consistent with Skuse's having been beaten. Epidermal and other injuries also revealed that she had been severely beaten about the face. The pathologist found sperm in her urethra, vagina, and vaginal introitus. He also testified that Skuse suffered from osteoporosis or "soft bones" that in turn caused kyphosis, i.e., a stooped or hunchbacked condition.

2. The Attack on Norma C.

Early in the evening of October 21, 1985, Gloria Luevano was waiting outside the gymnasium at St. Patrick's Elementary School in Sacramento County when 51-year-old Norma C., covered with blood and with "one shoe on and one shoe off with one nylon," came up to her. She went for help and when it arrived she showed a police officer where the second grade classroom was located. The blinds to that classroom were closed, whereas those to the first, third, and fourth grade classrooms were open.

Norma C., the second grade teacher, testified that she was grading workbooks at 5:20 to 5:25 that afternoon. The classroom curtains were open. She was wearing boots that zipped up almost to the knee. Defendant entered the room, strode quickly toward her, threw her on the floor and, without a word, started beating and choking her, hitting her at least 15 times. Bleeding profusely, Norma C. told him that she had a daughter and that she hoped he would not kill her. He dragged her--by her arms, she was fairly certain, although a sheriff's deputy experienced in analyzing bloodstain patterns thought that she was dragged by her feet or legs--to the back of the room and asked her if she had any money. (She was uncertain whether she was dragged on her back or on her stomach.) Although her glasses had been knocked off and her eyesight was dimmed by blood, she could see him going through her purse, which had both paper money and coins in it. She was fully clothed at that time. Then she blacked out. She next recalled being lifted into an ambulance. By the time she arrived at the hospital, she had discovered that her undergarments and

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one boot were missing. She could not remember telling a police officer at the hospital, in effect, that she had been raped. She identified defendant in the courtroom as the man who had battered her, and also testified that she had identified him in a photographic lineup.

Norma C. testified that she was left with a broken jaw and teeth and fractured facial bones. She lost her sense of smell and parts of her face remained numb at the time of trial. She had been lacerated, and had also received "three large incisions, ... [including] one ... which was near my neck vein." She had been required "to go and have some tests to see whether or not my jugular vein had been severed." She did not keep a knife in the classroom. There were, however, scissors that were evidently not in plain sight. She did not see a weapon in defendant's hand.

Norma C. also testified that she did not try to defend herself because the force of defendant's attack on her convinced her that he intended to kill her in any event and she did not want to increase her suffering.

A police officer testified that five to ten minutes after he arrived at 6:20 p.m. he went to the second grade classroom to try to apprehend the culprit. The curtains were drawn. He looked inside the classroom to see whether a suspect might still be there and, observing no one, guarded it for an hour until investigators could arrive and collect evidence.

Another police officer testified that the drapes were drawn when she arrived and that she found a stain...