People v. Osbourne CA4/1

Filed 6/17/21 P. v. Osbourne CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077000

Plaintiff and Respondent,

v. (Super. Ct. No. SCN390149)

SHACHELL OSBOURNE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
William Y. Wood, Judge. Reversed in part, affirmed in part.
Kevin Smith, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal, Andrew S. Mestman and Randall D. Einhorn, Deputy Attorneys
General, for Plaintiff and Respondent.
 I.
INTRODUCTION
A jury convicted Osbourne of one count of grand theft from an elder and
one count of grand theft based on an incident in which Osbourne took a
$9,000 embroidery machine from a shop owned and operated by an 80-year-
old man.1
On appeal, Osbourne contends that his conviction for grand theft must
be reversed because it is a lesser included offense of his conviction for grand
theft from an elder. The People concede that Osbourne’s conviction for grand
theft must be reversed.
Osbourne also contends that his trial counsel was constitutionally
ineffective for failing to request a pinpoint instruction stating that the “lack
of concealment” of the item taken supported Osbourne’s “claim of right”
defense, i.e., that he mistakenly believed that the item he took belonged to
him.
We agree with Osbourne and the People that Osbourne’s grand theft
conviction must be reversed because it is a lesser included offense of grand
theft from an elder. However, we disagree with Osbourne’s contention
regarding trial counsel’s failure to request a pinpoint instruction pertaining
to lack of concealment. Specifically, we conclude that Osbourne cannot
demonstrate that there is a reasonable probability that, but for counsel’s
alleged error, the result of the proceeding would have been different. We
therefore reverse the judgment in part, and otherwise affirm the judgment as
modified.

1 The jury acquitted Osbourne of other charges, including robbery and
assault.
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 II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution’s case
On July 4, 2017, Osbourne purchased a Brother 1400E embroidery
machine and accompanying software from a family-owned business called
Sew Pros, for $2,808, on a layaway plan.2 Osbourne made a $30 down-
payment. Pursuant to the layaway plan, he would have to pay the remaining
balance in full within a year.
A few days later, Osbourne stopped by the Sew Pros store in Oceanside
and made a $1,000 cash payment toward his purchase. Carleton T., the 80-
year-old owner of Sew Pros, provided Osbourne with a receipt. Several days
after that, Osbourne returned to the store to make a payment of $1,000 by
credit card. Even though there was a balance remaining after this payment,
Osbourne persuaded Carleton to let Osbourne take the machine and software
with him. The remaining balance was $778. Carleton again provided a
receipt, which noted the outstanding balance, and stated that the amount
was due within 90 days.
The machine that Osbourne purchased came with a two-year warranty
for free service. Osbourne took the machine into the Sew Pros’ Oceanside
store for service on August 2, 2018. Carleton accepted the machine and
transported it to Sew Pros’ main store in El Cajon, where service on machines
is normally handled.

2 Osbourne planned to use the machine in his business, which involves
embroidering designs on shirts and selling the shirts at music events.
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 In the meantime, Carleton’s daughter, Christina V., who was the
bookkeeper for the Sew Pros business, was reviewing accounts and noticed
that Osbourne had not paid the outstanding balance of $778.3 She told
Carleton that he should not release the machine to Osbourne until the
outstanding balance was paid.
Both Carleton and Christina left voicemail messages for Osbourne
letting him know that he still owed money on the embroidery machine.
Osbourne called Sew Pros several days later. He spoke with Christina and
told her that he believed he had paid off the balance. Christina asked
whether Osbourne had a receipt to demonstrate that he had paid the
remaining balance. Osbourne indicated that he did not have such a receipt.
Osbourne then stated that he wanted to return the software, saying that it
did not work well. Christina informed him that they could not accept a return
of used software. Christina thought that Osbourne sounded “a little bit
desperate” during the call. After Christina and Osbourne ended the call,
Christina called her father and told him that she had a “ ‘weird feeling about
this.’ ” She asked him to “ ‘put [the machine] in the back room where it’s not
able to be seen.’ ”
On August 16, 2018, Osbourne went to the Oceanside store to pick up
his machine. Carleton told Osbourne that he would have to pay the $778
outstanding balance before he could take the machine. In response,
Osbourne “went wild.” Osbourne knocked everything off of a desk and then
ran into the back room where the repaired machines were kept. Carleton
followed Osbourne, telling him that he was not allowed in the back. Carleton

3 Christina testified that she had “got[ten] a little behind” in pursuing
outstanding balances because she had been spending a lot of time caring for
her mother and father, who were experiencing health issues at the time.
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testified that when he followed Osbourne into the back room, Osbourne
attacked him, punching and kicking him and knocking him to the cement
floor. Carleton said that he hit his head on metal shelves in the room as he
fell. According to Carleton, Osbourne continued to kick and hit him while he
was on the ground and then ran back into the front area of the store.
Osbourne was heading to the exit of the store. On his way out, he
stopped and grabbed a blue machine, which Carleton described as a “biggy.”
It was a “heavy machine” worth $9,000. Osbourne said to Carleton, “ ‘I’ll
show you. I’ll grab that machine,’ ” as he picked up the machine and quickly
exited the store. The machine that Osbourne took was much larger and had
more features than the machine that Osbourne had purchased.
Carleton called 911. When the police arrived, they found Carleton
bleeding and bruised in several places. Paramedics arrived and treated
Carleton, but he declined to go to the hospital in the ambulance because he
was the only one at the store and was unwilling to leave the store
unattended. Later that day, after the store had closed, Christina took
Carleton to an urgent care clinic for treatment of a large laceration on his left
elbow, a second laceration on his left forearm, and various hematomas, which
occur when an individual “sustain[s] a direct blow to the skin,” causing “blood
underneath the skin.” Carleton was released after a couple of hours, but
returned for additional care “three or four times.”
2. The defense
Osbourne testified that, contrary to the claims of Carleton and
Christina, he had returned to the store twice—in mid-August and mid-
September 2017—to make cash payments to satisfy the remaining $778
balance on the embroidery machine and its software. He stated that he

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did not recall whether Carleton had given him receipts for those
payments, and he was unable to locate any receipts.
Osbourne stated that he first brought the machine into Sew Pros
for routine service in December 2017. At that time, according to
Osbourne, Carleton accepted the machine for service, and no one
indicated to him that there was an outstanding balance due. He said
that he picked up the machine three days after taking it in for service.
Osbourne testified that when he went to the store on August 16,
2018 to pick up the machine, he told Carleton that he had already paid
the $778. Because Carleton was insisting that the $778 remained due,
Osbourne offered to pay $200 as a compromise, but Carleton refused the
offer. Osbourne explained that he accidentally knocked some items off a
counter while he was gesturing. Osbourne also testified that while he
was looking for his machine in the back room of the store, he heard a
crashing sound behind him and saw Carleton on the floor. Carleton was
bleeding, and Osbourne helped him up. Carleton was angry and
demanded that Osbourne leave the store.
Osbourne testified that he thought he had grabbed his own machine
when he left the store, and that he did not realize until he got home that
he had taken a different machine. According to Osbourne, he decided to
hold on to the machine that was not his until he could obtain legal advice;
he thought that he could arrange an exchange to get his own machine
back and possibly sue Sew Pros to recover profits that he had lost from
not having his machine to use for embroidering shirts.

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B. Procedural background
Osbourne was charged with robbery (Pen. Code,4 § 211; count 1);
assault on an elder likely to produce great bodily harm (§ 368, subd.
(b)(1); count 2); assault likely to produce great bodily injury (§ 245, subd.
(a)(4); count 3); theft from an elder of property worth more than $950
(§ 368, subd. (d); count 4) and grand theft of personal property worth
more than $950 (§ 487, subd. (a); count 5). The charging document also
alleged that Osbourne personally inflicted great bodily injury on a person
aged 70 years or older with respect to counts 2 and 3 (§ 12022.7,
subd. (c)).
On October 29, 2019, a jury convicted Osbourne of theft of property
worth more than $950 from an elder, as charged in count 4, and grand
theft of personal property worth more than $950, as charged in count 5.
The court sentenced appellant to three years of formal probation for
theft from an elder, and stayed any punishment for grand theft pursuant
to section 654. Osbourne filed a timely notice of appeal.
III.
DISCUSSION
A. Osbourne’s conviction on count 5 must be reversed because grand theft is a
lesser included offense of grand theft from an elder

Osbourne argues that he cannot stand convicted of both grand theft
from an elder and grand theft because the latter is a lesser included offense of
the former. The People concede this issue, and we agree.

4 Further statutory references are to the Penal Code unless otherwise
indicated.
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 For purposes of the rule against convictions for both greater and lesser
included offenses, the statutory elements test is used to determine whether a
charged offense is necessarily included within another charged offense.
(People v. Reed (2006) 38 Cal.4th 1224, 1231.) Under the elements test, a
court considers only the statutory elements of the two offenses, and the
question is whether all of the statutory elements of the lesser offense are
necessarily included within those of the greater offense—i.e., “if a crime
cannot be committed without also committing a lesser offense, the latter is a
necessarily included offense.” (People v. Ramirez (2009) 45 Cal.4th 980, 985.)
As the People acknowledge, the elements of grand theft from an
elder include all of the elements of grand theft plus one additional
element—i.e., that the defendant knew or reasonably should have known
that the owner of the property was an elder adult. (Compare § 368,
subd. (d) and § 487, subd. (a).) “When a defendant is found guilty of both
a greater and a necessarily lesser included offense arising out of the same
act or course of conduct, and the evidence supports the verdict on the
greater offense, that conviction is controlling, and the conviction of the
lesser offense must be reversed.” (People v. Sanders (2012) 55 Cal.4th
731, 736.)
Accordingly, we accept the People’s concession and reverse
Osbourne’s conviction for grand theft. Because the trial court stayed
imposition of sentence on this count pursuant to section 654, we modify
the judgment to strike that count rather than remand for resentencing.

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B. Defense counsel did not provide ineffective assistance
Osbourne contends that his trial counsel rendered constitutionally
ineffective assistance in failing to request a pinpoint instruction with respect
to Osborne’s “lack of concealment” of the item taken, in support of his “claim
of right” defense. According to Osbourne, his trial counsel should have
requested a pinpoint instruction telling the jury that the lack of concealment
of property being taken may be considered as evidence that the defendant
had a good faith belief that he was entitled to take the property.
1. Additional procedural background
Osbourne’s defense to the theft charges was that he mistakenly
believed that the machine that he grabbed on the way out of the Sew Pros
store belonged to him. Consistent with this defense, the trial court instructed
the jury with CALCRIM No. 1863, the standard instruction regarding a
“claim of right” defense:
“If the defendant obtained property under a claim of right,
he did not have the intent required for the crime of theft or
robbery.

“The defendant obtained property under a claim of right if
he believed in good faith that he had a right to the specific
property or a specific amount of money, and he openly took
it.

“In deciding whether the defendant believed that he had a
right to the property and whether he held that belief in
good faith, consider all the facts known to him at the time
he obtained the property, along with all the other evidence
in the case. The defendant may hold a belief in good faith
even if the belief is mistaken or unreasonable. But if the
defendant was aware of facts that made that belief
completely unreasonable, you may conclude that the belief
was not held in good faith.

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 “If you have a reasonable doubt about whether the
defendant had the intent required for theft or robbery, you
must find . . . him not guilty of robbery, as charged in
Count One; theft from an elder, as charged in Count Four;
and grand theft, as charged in Count Five.”

During closing argument, defense counsel argued, “On his way out
after this has just happened, [Carleton] just fell, Mr. Osbourne realizes,
‘Crap. I shouldn’t have gone back there. This turned into a mess,’ and he’s
leaving. Quick glimpse, he sees what he thinks is his machine, and he grabs
it. Grabs it, walks out, ‘Oh, here’s my machine. I’m leaving.’ [¶] He has
taken the machine that he believes is his. He puts it in the back of his car.
He gets home, when he gets it [sic], he realizes, ‘Whoa. Whoops. Not my
machine.’ [¶] Now, [he] never intended on keeping it permanently. He knew
that was not his machine. He just wanted his old machine. . . . [¶] We know
he didn’t hide the machine. He didn’t sell it. He didn’t damage it or do
anything to somehow conceal it.”
2. Analysis
A defendant claiming ineffective assistance of counsel must satisfy a
two-part test; first, the defendant must show that counsel’s performance was
deficient; second, the defendant must demonstrate that the deficient
performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S.
668, 687 (Strickland).) With respect to the first prong, the defendant “must
show that counsel’s representation fell below an objective standard of
reasonableness” measured against “prevailing professional norms.” (Id. at
p. 688.) With respect to the prejudice prong, the defendant is required to
establish that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been

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different.” (Id. at p. 694.) “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” (Ibid.)
We need not consider whether counsel’s failure to request the identified
pinpoint instruction constituted deficient performance because we conclude
that Osbourne’s ineffective assistance of counsel claim fails on the ground
that he cannot establish that, but for trial counsel’s alleged error, it is
reasonably probable that “the result of the proceeding would have been
different.” (Strickland, supra, 466 U.S. at p. 694.)5
The trial court instructed the jury with the standard instruction
regarding the claim of right defense. This instruction stated that openly
taking the property, combined with a good faith belief in the right to the
property, constituted a valid claim-of-right defense. Thus, the jury was told
that openly taking the property, i.e., taking an item without attempting to
conceal the taking, would support Osborne’s claim of right defense. Given
this, the inclusion of an additional instruction regarding lack of the
concealment of the item taken would have been redundant; it is not
reasonably probable that Osbourne’s claim of right defense would have been
successful if the trial court had provided a second instruction informing the
jury that it could consider the lack of concealment as evidence that the
defendant held a good faith belief that he was entitled to take the property.
Moreover, the evidence was such that we are convinced that Osbourne’s
claim of right defense would not have succeeded even if the trial court had
given a separate instruction informing the jury that not concealing one’s
taking of property can support a claim of right defense. There was no dispute
as to whether Osbourne attempted to conceal the embroidery machine that

5 We do not intend to suggest that counsel’s conduct fell below an
objective standard of reasonableness; rather, we merely presume so for the
purpose of argument.
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he took from Sew Pros. Not only did the evidence demonstrate that Osbourne
did not attempt to conceal the machine as he grabbed it and took it out of the
store, but Carleton testified that Osbourne blatantly took the machine and
made a comment that suggested that Osbourne was taking the machine as
retribution for Carleton’s refusal to give him his own machine. Specifically,
according to Carleton, Osbourne picked up the machine and stated, “ ‘I’ll
show you. I’ll grab that machine.’ ” Further, the machine that Osbourne
took on his way out of the store was larger and heavier than the machine that
Osbourne had purchased and was presumably very familiar with, given that
he had been using it for over a year. The machine that Osbourne took was
also a different color from Osbourne’s machine, and it had a screen that was
more than two times larger than the one on Osbourne’s machine. In addition,
the machine that Osbourne took from the store was displayed in the front of
the store when Osbourne arrived. Prior to taking that machine, Osbourne
never indicated in any way that he thought that machine was his; instead,
Osbourne admitted that he went to the back of the store to look for his own
machine. This constitutes additional evidence consistent with the other
evidence demonstrating that Osbourne knew that the machine he took from
the store was not his.
The jury clearly did not believe Osbourne’s testimony or his defense
that he thought he was taking his own machine. Because there was no
dispute that Osbourne did not attempt to conceal the machine that he took,
and given the evidence that the machine Osbourne took differed in size and
appearance from his own machine, it is not reasonably likely that an
instruction further highlighting the lack of the concealment would have
altered the jury’s view of the evidence.

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 The cases on which Osbourne relies in arguing that his counsel was
deficient in failing to request a pinpoint instruction regarding lack of
concealment do not change our opinion. Osbourne relies on People v. Stewart
(1976) 16 Cal.3d 133, 138, 141 (Stewart), an embezzlement case in which the
Supreme Court concluded that the trial court had a sua sponte duty to
instruct the jury with a “correct instruction setting forth the general theory
relied upon by defendant”—i.e., that the “defendant was actually authorized,
or, alternatively, possessed a good faith belief that he was so authorized, to
appropriate corporate funds in the manner disclosed in the record.” (Id. at
p. 140.) In reaching this conclusion, the Court further concluded that the
trial court should have given another instruction requested by the defense
stating that “lack of concealment [was] evidence of good faith belief in
authority and lack of fraudulent intent.” (Id. a p. 141.) In this case, the trial
court did instruct on Osborne’s defense theory by giving the standard claim of
right instruction; that instruction informed the jury that “openly” taking the
property in question supports a claim of right defense. This is essentially the
same as informing the jury that the lack of concealment of the item taken
supports a claim of right defense. Further, Stewart offers no assistance with
respect to whether a defendant can demonstrate the prejudice required to
establish ineffective assistance of counsel by failing to request a separate
pinpoint instruction on lack of concealment; rather, Stewart stands merely for
the proposition that a court should instruct on lack of concealment with
regard to a claim of right defense if requested.6 Osbourne also relies on

6 In Stewart, the Supreme Court was not considering a standard
instruction such as the one that was given here that included a reference to
“openly” taking the property in question. Rather, the Stewart court was
considering a general claim of right instruction that had been proposed by the
defense, which read as follows: “ ‘It is a defense to the charge of
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People v. Hussain (2014) 231 Cal.App.4th 261, in support of his argument
that his counsel was ineffective. Hussain involved the failure of defense
counsel to request even the standard claim of right instruction where “the
heart of [the defendant’s] defense to the grand theft charge” was that he “had
a good faith belief that the lien sale [that defendant arranged] had been
conducted properly.” (Id. at p. 271.) The Hussain court concluded that
counsel’s failure to request the standard claim of right instruction constituted
ineffective assistance and required reversal of the defendant’s conviction for
grand theft. (Id. at pp. 270–272.) As noted, the trial court in this case
instructed with the standard claim-of-right instruction; Osbourne is
complaining about his counsel’s failure to request what amounts to a
redundant pinpoint instruction. Hussain therefore does not alter our
conclusion that Osbourne has failed to demonstrate that it is reasonably
probable that, but for trial counsel’s failure to request a pinpoint instruction
on lack of concealment, the result of the proceeding would have been
different. (See Strickland, supra, 466 U.S. at pp. 687, 697.)

embezzlement if the defendant was under the belief that he was acting
within the scope of his authority.’ ” (Stewart, supra, 16 Cal.3d at p. 138.)
Thus, in Stewart, unlike here, the requested pinpoint instruction would have
constituted the only reference in the instructions to the lack of concealment
by the defendant. (See id., at pp. 138–142.)
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 IV.
DISPOSITION
Osbourne’s conviction on count 5 is reversed. His conviction on count 4
is affirmed. The trial court is directed to issue an amended minute order and
order of probation reflecting the judgment as indicated, and to forward
certified copies to the appropriate authorities.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.

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