Osband

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)).

*653 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…

I concur in the judgment.

The majority find harmless the error in omitting an explicit reference to the intent to kill from the felony-murder special-circumstance instructions because, in their view, overwhelming evidence leads to the conclusion that defendant did intend to kill. (Maj. opn„ ante, at pp. 679-684.) I have explained that this type of harmless-error analysis is improper because the question “is not what a reviewing court might itself decide if it looked to the entire record,” for “the reviewing court is not the proper decisionmaker.” (People v. Johnson (1993) 6 Cal.4th 1, 56 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ] (conc. and dis. opn. of Mosk, J.).) Neither is the question “what a reviewing court might conjecture the jury would have decided in the absence of the error.” (Id. at p. 57.) Rather, it is “what the jury actually decided and whether the error may have tainted its decision." (Id. at p. 56.)

*738 Nevertheless, I agree with the majority that the error was harmless. Under the instructions given, the jury necessarily found an intent to kill.

As the People concede, failing to instruct the jury that it had to find intent to kill as an element of each of the…

I concur in the judgment affirming defendant’s death sentence for the first degree murder of Lois Minnie Skuse, and upholding his convictions for the attempted murder of Norma C., and for the other offenses committed during those two incidents. With one exception, I also agree with the reasoning of the majority. In particular, I agree that the trial court erred in failing to instruct the jury that it could find the felony-murder special-circumstance allegations to be true only if it determined that defendant intended to kill Skuse, and I agree that this error did not prejudice defendant. My disagreement is with the reasoning the majority uses to reach the conclusion that this error was nonprejudicial.

The majority reasons that the error was nonprejudicial because “ ‘the evidence of defendant’s intent to kill . . . was overwhelming’ ” (maj. opn., ante, at p. 681), and therefore the majority is satisfied beyond a reasonable doubt that defendant would not receive a more favorable verdict if the matter were to be retried in a proceeding in which the error did not occur. The difficulty with this reasoning is that the majority is substituting its own judgment of what a hypothetical…