People v. Osby CA2/5

Filed 4/27/22 P. v. Osby CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B314763

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA438205) v.

DAVID OSBY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura F. Priver, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. _________________________________

The jury found defendant and appellant David Osby guilty of robbery (Pen. Code, § 211 [count 1])1 and resisting an officer (§ 69 [count 2]). The jury found true the allegations that Osby used a deadly weapon, a knife, in the commission of count 1 (§ 12022, subd. (b)(1)), and that he suffered three prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and section 667, subdivision (a). The trial court sentenced Osby to a total of 25 years to life in prison, plus a determinate term of 17 years. On appeal, we reversed the convictions (the panel majority held the trial court abused its discretion by retaining a juror whose incompetence to serve appeared as a demonstrable reality in the record, and the concurring justice opined reversal was necessary because of error in the trial court’s ruling permitting Osby to represent himself). (People v. Osby (Apr. 22, 2021, B299496) [nonpub. opn.].) On remand, Osby accepted a plea offer made by the People; he pleaded no contest to the robbery in count 1 and admitted a prior strike conviction. Consistent with the plea offer made and accepted, the trial court sentenced him to a total of four years in prison. Osby was awarded credit for time served and released from custody to parole. Osby timely appealed. We appointed counsel. After reviewing the record, counsel filed an opening brief asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende). On March 3, 2022, we advised Osby through trial counsel that he had 30 days to submit