Hussain

On April 29, 2013, a jury found defendant Alim Hussain guilty of grand theft of an automobile (Pen. Code, § 487, subd. (d)(1)), arising from an improper lien sale. The jury acquitted defendant of other charges arising from that sale, as well as the charge of operating a “chop shop.” The trial court placed defendant on five years of formal probation, including 120 days in the county jail as a condition thereof.

On appeal, defendant contends the trial court erred in failing to instruct sua sponte on claim of right as a defense (CALCRIM No. 1863), and that counsel was ineffective in failing to request the instruction. Defendant also contends there is insufficient evidence of his criminal intent.

The People concede the evidence supported a claim of right instruction. We agree with the parties on that point. The People also concede error by the trial court in failing to sua sponte instruct the jury on claim of right. We reject that concession, as we explain post. We do find, however, that trial counsel was ineffective in failing to request that pattern instruction CALCRIM No. 1863 be given and that this failure resulted in prejudice to defendant. Accordingly, although we…