Conviction for grand theft of an automobile reversed for ineffective assistance of trial counsel, who failed to request a claim of right instruction. A jury found Hussain guilty of grand theft of an automobile (Pen. Code, § 487, subd. (d)(1)) based on evidence of an improper lien sale; it acquitted him of other charges arising from the same event. On appeal he claimed the trial court erred in not instructing on claim of right (CALCRIM No. 1863) and that his attorney was ineffective for not requesting the instruction. Held: Reversed. Hussain is from the Fiji Islands. Although he speaks English, he does not read it. He operated a car repair shop. In 2011, Schools Financial Credit Union notified the DMV that it had been removed as the legal owner of a Toyota Land Cruiser it financed. The DMV investigated and discovered that the Toyota had been transferred to a new owner by Hussain’s business via a possessory lien sale for services. Hussain did not give proper notice of the lien sale to the credit union. Evidence reflected that Hussain had been advised and assisted with the lien sale by Lisa Hodges, who mistakenly transposed numbers on the address of a notice sent to the credit union. The letter was returned for improper address, but Hussain did not know what it meant so filed it away. The evidence merited an instruction on claim of right, which provides that a defendant’s good faith belief he has a right to property he takes from another negates the felonious intent required for theft. However, the court had no sua sponte duty to so instruct because Hussain’s evidence was offered to negate the criminal intent for theft. Like accident or mistake of fact, a claim of right instruction must be requested.
Defense counsel was ineffective in not requesting a claim of right instruction. Defense counsel argued to the jury that Hussain believed the lien sale had been conducted properly; claim of right was the core of his defense. The record does not reflect why counsel failed to request a claim of right instruction, which generally precludes a finding of ineffective assistance of counsel on appeal unless there could be no satisfactory explanation. This case falls within that category. The jury struggled with the intent element and, after seeing Hussain testify, acquitted him of all but one charge. It is reasonably probable the jury would have accepted a claim of right defense if instructed on it. Counsel’s failure to request a proper instruction prejudicially deprived appellant of the effective assistance of counsel.
Sufficient evidence was presented regarding the offense. Hussain claimed the evidence of intent to deprive the credit union of the Toyota was insufficient to support the theft conviction. However, the jury’s acquittals on some charges does not mean the evidence was insufficient to support the conviction on another count. The evidence presented regarding intent was conflicting and not insufficient to support the verdict.