Filed 11/6/14
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                              ----




THE PEOPLE,                                                       C074397

                  Plaintiff and Respondent,              (Super. Ct. No. 12F01772)

        v.

ALIM HUSSAIN,

                  Defendant and Appellant.




     APPEAL from a judgment of the Superior Court of Sacramento County, Emily
Vasquez, Judge. Reversed.

      Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.

       Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen, and Sally Espinoza, Deputy Attorney General, for
Plaintiff and Respondent.




                                               1
        On April 29, 2013, a jury found defendant guilty of grand theft of an automobile
(Pen. Code, § 487, subd. (d)(1)),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 find sufficient evidence to support
defendant’s conviction, we reverse the judgment.
                                           FACTS
        Defendant was born in the Fiji Islands, where he went to school only to the sixth
grade. He came to the United States in 2000, obtained a green card, and opened a car
repair shop, A-TEK Automotive, in 2006. He has learned to speak English, but cannot
read or write it.2 He has his customers write out the invoices; some claim they do not
need one.



1   Further undesignated statutory references are to the Penal Code.
2  At trial defendant began his testimony by trying to answer questions without
translation. As it became apparent he had difficulty understanding some questions, the
trial court required the interpreter to translate every question.

                                              2
       Schools Financial Credit Union (Schools) had financed a 1988 Toyota Land
Cruiser for Froyland Lorezco. Department of Motor Vehicle (DMV) records show the
financier as the legal owner of the vehicle and the person with the loan as the registered
owner. In February 2010, Lorezco fell behind in the payments; the vehicle was assigned
for repossession in May. In July 2011, Schools learned it was no longer listed as the
legal owner of the vehicle. The vehicle had been registered to a Mr. Nasrudin. Schools’
collection manager reported this change of ownership to the DMV.
       Eric Cook, a DMV investigator, was notified of the lien complaint. The transfer
documents for the Land Cruiser showed a lien sale through A-TEK Automotive. A lien
sale is based on a possessory lien for services and permits a licensed repair facility to sell
a car to recoup repair costs and other expenses. The first step is for the lien holder to
obtain information from the DMV about all interested parties, such as the legal owner
and registered owner. The lien holder then notifies those parties of the lien sale by
certified mail with an accompanying certificate of mailing. After the sale, when the lien
holder seeks to change the registration of the vehicle, he submits various documents to
the DMV, including postal receipts to prove proper notice was given. The documents
that defendant submitted to the DMV for this lien sale were missing the postal receipt
showing notice had been given to the credit union. Nonetheless, the DMV transferred
title to the Land Cruiser to defendant. This transfer was a mistake; the DMV clerk should
have returned the documents and noted what was missing. Defendant subsequently sold
the Land Cruiser to Ahmad Sha Nasrudin.
       On December 1, 2011, Cook went to see defendant about the lien complaint on the
Land Cruiser. Defendant gave evasive answers to Cook’s questions; he claimed he could
not remember the name of the customer who brought in the Land Cruiser or the name of
the person to whom he later sold it. Defendant said a customer brought the Land Cruiser
in to get the transmission repaired and wanted defendant to remove the transmission. The
customer would get it repaired and have defendant reinstall it. The customer never

                                              3
returned so defendant installed a new transmission in the vehicle. Defendant had no
paperwork for the repairs.
        Daniel Cawley accompanied Cook to A-TEK Automotive. While Cook was
questioning defendant, Cawley looked around the repair area. He saw a dark blue Audi;
its body parts had been removed, and the right front frame rail and front passenger
compartment had been cut off. The car looked like it was being chopped up and Cawley
suspected a chop shop. When Cawley asked defendant about the car, defendant said it
had been in an accident and the owner asked to have the component parts removed and
the chassis cut. Again, defendant had no paperwork. The car parts did not appear
damaged.
        The Trial
        At trial, Gurpreet Singh, the owner of the blue Audi, testified he left the car at
defendant’s shop. Later, he reported the car stolen in Colorado and filed an insurance
claim, receiving $4,299. He claimed defendant told him to make this false report. Later,
Singh saw the car being dismantled. He went back to the Colorado police and told “the
whole story.” He had not repaid the insurance company.
        A retired DMV investigator testified he believed A-TEK was operating as a chop
shop.
        An investigator from the Bureau of Automotive Repairs inspected the Land
Cruiser. It had its original transmission, the one installed by Toyota. Based on the
amount of dirt on the transmission, he did not believe the transmission had been taken out
in the last year before inspection. He later testified he was 100 percent confident that the
transmission had not been removed in the nearly two years between the transfer and the
inspection.
        Nasrudin and his son Samardin testified about the purchase of the Land Cruiser
from defendant. Samardin had purchased the car for his father and told varying stories of



                                               4
how much he paid. He told investigators he paid $4,000 to $5,000, perhaps with a trade-
in. He later produced a receipt for $6,000.
       Defendant testified he gave Lorezco an estimate of $2,500 to rebuild the
transmission in the Land Cruiser. Lorezco asked defendant to take out the transmission
and he would have someone else rebuild it. Defendant removed the transmission, but
Lorezco later brought it back and defendant reinstalled it. Defendant did some other
work on the Land Cruiser; the total bill was $590, of which $450 was labor. Defendant
was unable to reach Lorezco to pick up the vehicle because his phone was disconnected.
       After the vehicle had been left at his shop a long time, defendant called Lisa
Hodges, who helped him with paperwork. She told him to file a lien. Hodges had been
an office manager for a towing company and was very familiar with lien sales. She knew
notice of the sale had to be sent to the DMV, the registered owner, and the legal owner.
She filled out the lien paperwork for defendant. She obtained information from the DMV
about Schools’ legal ownership. In sending Schools notice she mistakenly transposed
numbers in both the post office box and the zip code of Schools’ address. The post office
returned the notice undelivered, with a yellow label affixed to the front of the envelope.
Defendant received the returned letter, but did not know what the yellow label meant, or
realize the letter pertained to the lien sale. He just filed it without opening it. After he
was criminally charged, he looked for the letter, found it, and gave it to his lawyer.
       Hodges told defendant he could sell the Land Cruiser 31 days after the lien was
filed. Defendant checked with her as to when the 31 days had lapsed, and she told him he
could sell the car. Defendant sold the Land Cruiser to Samardin for $750 and a trade-in.
Defendant claimed Samardin removed a receipt from defendant’s receipt book at the time
of the sale.
       Defendant testified Singh asked him to remove parts from the Audi and cut it up.
Defendant had his suspicions, but did what Singh asked.



                                               5
        Defendant explained he was on pain medication and “sleepy” when the police
questioned him about the Land Cruiser and the Audi. The officer used a “hard tone” and
tried to confuse and scare him.
        Charges and Verdicts
        Defendant was charged with owning and operating a chop shop (Veh. Code,
§ 10801), theft by false pretenses with Ahmad Nasrudin as the victim (§ 532, subd. (a)),
grand theft of an automobile with Schools as the victim (§ 487, subd. (d)(1)), and perjury
(§ 118, subd. (a)).
        During jury deliberations, the jury asked for Hodges’s testimony to be reread. The
jury then asked for a clarification about the law, inquiring if the specific intent instruction
(CALCRIM No. 251) applied to “every element of every count,” specifically, “Elements
1, 2, 3, and four on Page 35.” Page 35 contained only the instruction on grand theft auto,
CALCRIM No. 1800, titled “Theft by Larceny (Pen. Code, § 487(d)(1)).” The court
responded that the specific intent required for grand theft was “to deprive the owner of it
permanently.” The jury also asked for a definition of “mental state” as appearing in
CALCRIM No. 251, and the court simply told the jury to read the content of the
instruction, not its title.
        The jury found defendant guilty of theft by larceny, but not guilty of the other
charges and a lesser offense.
                                        DISCUSSION
                                               I
                         Duty to Instruct Sua Sponte on Claim of Right
        Defendant contends the trial court erred in failing to instruct sua sponte on the
defense of claim of right. He asserts the court should have given CALCRIM No. 1863.3



3  CALCRIM No. 1863 provides: “If the defendant obtained property under a claim of
right, (he/she) did not have the intent required for the crime of (theft/ [or] robbery) [¶]

                                               6
Defendant claims he was prejudiced because the jury struggled with the specific intent
requirement for grand theft and the jury acquitted him on the other charges relating to the
Land Cruiser.
       The People concede there was sufficient evidence to support the instruction,
agreeing there was evidence to support defendant’s argument he acted in good faith in
appropriating the Land Cruiser. The People also concede error in the trial court’s failure
to instruct sua sponte on claim of right. They contend, however, the error was harmless
because defendant’s credibility was weakened by other parts of his testimony and his
counsel argued claim of right to the jury. We reject the second concession and disagree
with the harmless error analysis.
       “In criminal cases, even in the absence of a request, a trial court must instruct on
general principles of law relevant to the issues raised by the evidence and necessary for
the jury’s understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953.)
The trial judge has a duty to instruct as to defenses “ ‘only if it appears that the defendant
is relying on such a defense, or if there is substantial evidence supportive of such a
defense and the defense is not inconsistent with the defendant’s theory of the case.’
[Citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 157.) “ ‘However, when a


The defendant obtained property under a claim of right if (he/she) believed in good faith
that (he/she) had a right to the specific property or a specific amount of money and
(he/she) openly took it. [¶] In deciding whether the defendant believed that (he/she) had
a right to the property and whether (he/she) held that belief in good faith, consider all the
facts known to (him/her) at the time (he/she) 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. [¶] [The claim-of-right defense does not apply if the defendant attempted to
conceal the taking at the time it occurred or after the taking was discovered.] [¶] [The
claim-of-right defense does not apply to offset or pay claims against the property owner
of an undetermined or disputed amount.] [¶] . . . [¶] If you have a reasonable doubt
about whether the defendant had the intent required for (theft/ [or] robbery), you must
find (him/her) not guilty . . . .”

                                              7
defendant presents evidence to attempt to negate or rebut the prosecution’s proof of an
element of the offense, a defendant is not presenting a special defense invoking sua
sponte instructional duties. While a court may well have a duty to give a “pinpoint”
instruction relating such evidence to the elements of the offense and to the jury’s duty to
acquit if the evidence produces a reasonable doubt, such “pinpoint” instructions are not
required to be given sua sponte and must be given only upon request. [Citations.]’ ”
(People v. Saille (1991) 54 Cal.3d 1103, 1117.)
       In People v. Anderson (2011) 51 Cal.4th 989 at page 998, our Supreme Court held
trial courts do not have a duty to instruct sua sponte on the defense of accident, provided
the jury is properly instructed on the mental state element of the charged crime. The
Anderson court explained that the defense of accident serves only to negate the mental
state element of the offense charged, and the trial court’s only obligation to instruct on
accident is to provide an appropriate pinpoint instruction upon request. (Id. at pp. 997–
998.) In People v. Lawson (2013) 215 Cal.App.4th 108 at page 117, the appellate court
held “the rationale of Anderson is applied with equal force to the defense of mistake of
fact, or any other defense that operates only to negate the mental state element of the
crime.”
       “The claim-of-right defense provides that a defendant’s good faith belief, even if
mistakenly held, that he has a right or claim to property he takes from another negates the
felonious intent necessary for conviction of theft or robbery.” (People v. Tufunga (1999)
21 Cal.4th 935, 938.) “Stated simply, a claim of right to take disputed property negates
the criminal intent necessary for theft. [Citation.]” (Barnett v. State Farm General Ins.
Co. (2011) 200 Cal.App.4th 536, 544.)
       Since the claim of right defense, like accident or mistake of fact, serves only to
negate the mental state required for grand theft, under Anderson the trial court had no




                                              8
duty to instruct sua sponte on it. Absent a request from either counsel, the trial court did
not err in failing to instruct with CALCRIM No. 1863.4
                                              II
                             Ineffective Assistance of Counsel
       Defendant next contends he received ineffective assistance of counsel because
counsel failed to request CALCRIM No. 1863. He contends counsel could not have had
a tactical reason for failing to request the instruction because counsel relied on claim of
right in his closing argument. Counsel argued defendant believed the lien sale had been
conducted properly and Hodges told him he could sell the vehicle to the Nasrudins.
Defendant contends he was prejudiced by this omission.
       “ ‘In order to demonstrate ineffective assistance of counsel, a defendant must first
show counsel’s performance was “deficient” because his “representation fell below an
objective standard of reasonableness . . . under prevailing professional norms.”
[Citations.] Second, he must also show prejudice flowing from counsel’s performance or
lack thereof. [Citations.] Prejudice is shown when there is a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” [Citations.]’ [Citation.]” (People v. Goldman (2014) 225 Cal.App.4th
950, 957; see Strickland v. Washington (1984) 466 U.S. 668, 687-694 [80 L.Ed.2d 674,
693-698] (Strickland).)




4  We note that neither party cited Anderson on appeal or otherwise recognized that the
trial court had no obligation to instruct sua sponte on claim of right. We recognize that
People v. Russell (2006) 144 Cal.App.4th 1415, 1429, held a trial court must instruct sua
sponte on claim of right if there is substantial evidence to support the defense and it is not
inconsistent with defendant’s theory of the case. We agree, however, with People v.
Lawson, supra, 215 Cal.App.4th at p. 118, that after Anderson, Russell is no longer good
law on this point.

                                              9
       “We deem it appropriate to emphasize that the duty of counsel to a criminal
defendant includes careful preparation of and request for all instructions which in his
judgment are necessary to explain all of the legal theories upon which his defense rests.”
(People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7, overruled on other grounds in
People v. Breverman, supra, 19 Cal.4th at pp. 164-178.) Here, the jury was instructed
using the CALCRIM pattern instructions. CALCRIM No. 1863, entitled “Defense to
Theft or Robbery: Claim of Right (Pen. Code, § 511),” was first published in January
2006 and revised in October 2010. Counsel should have been aware of this pattern
instruction and the need to request the instruction if the claim of right defense was even
arguably supported by the evidence, rather than waiting for the trial court to give it sua
sponte or ignoring it all together. Claim of right was the core of defendant’s defense to
the grand theft charge. Counsel argued to the jury that defendant lacked the requisite
intent because he thought that he had the right to sell the Land Cruiser. Defendant
thought the lien sale was proper, and Hodges had represented to him that he had the right
to sell the vehicle. Counsel argued that “there is not guilty intent as to the -- as to stealing
the property of the credit union.” Further, had counsel been aware of Anderson, a case
that was decided almost two years before trial, he would have been alerted to the need to
request the instruction. (See Nelson v. Estelle (5th Cir. 1981) 642 F.2d 903, 908 [“a
failure of counsel to be aware of prior controlling precedents in even a single prejudicial
instance might render counsel’s assistance ineffective under the Sixth Amendment”].)
       The record does not reveal why counsel failed to request the instruction on claim
of right. In such instances, the claim of ineffective assistance of counsel will be rejected
unless counsel was asked for an explanation and failed to provide one or there simply
could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264,
266.) This case falls in the latter category; there can be no satisfactory reason not to
request an instruction to support the core of the defense. The question, then, is whether
the failure to request CALCRIM No. 1863 was prejudicial.

                                              10
       The People contend there was no prejudice. They point to several areas of
defendant’s testimony that compromised defendant’s credibility. On the lien notice,
defendant claimed he paid $165 for towing, but he admitted he was reimbursed the
towing charge. There was a discrepancy as to the purchase price of the Land Cruiser.
Defendant claimed he installed the transmission but the People’s expert refuted that
claim. Defendant failed to tell Hodges about the returned letter although she testified it
was his obligation to do so. Presumably, the People are arguing the jury would have
rejected the claim of right defense even if instructed on it.
       We are not persuaded. As we have discussed, the claim of right defense--that
defendant had a good faith belief that the lien sale had been conducted properly--was the
heart of his defense to the grand theft charge. The jury struggled with the element of
intent on this charge, asking specifically how specific intent related to the elements of
grand theft. The jury acquitted him on every charge except this one, as to which it was
not properly instructed.
       Certainly, there were problem areas in defendant’s testimony (as there were with
other witnesses) and the jury could have rejected some or even all of it. The acquittals on
other charges, however, indicate the jury, who saw defendant testify and thus could
assess his credibility, did not reject defendant’s testimony entirely. The jury acquitted
defendant of theft by false pretenses, apparently finding that he did not intend to deceive
the Nasrudins as to his right to sell the Land Cruiser.5 Further, the jury acquitted him of



5  The People argue repeatedly that theft by false pretenses is different than larceny by
trick or device. This argument is puzzling because larceny by trick or device was not
charged or offered as a theory of theft in this case. The People fail to explain how the
intent requirement differs between theft by false pretenses and grand theft--which was
defendant’s crime of conviction. We will not argue their point for them. (Paterno v.
State of California (1999) 74 Cal.App.4th 68, 106.) “ ‘The crime of grand theft is
complete when a man takes property not his own with the intent to take it, and a
defendant may be convicted of grand theft upon proof of facts establishing (a)

                                              11
operating a chop shop even though a dismantled and chopped up car was found in his
shop, he knew about it because he told an inquiring worker the ongoing dismantling was
fine, an expert testified defendant was operating a chop shop, and defendant called Singh
right after the investigators came. The jury appeared to accept defendant’s testimony that
he was Singh’s dupe. Thus, it is reasonably probable the jury may have accepted
defendant’s claim of right defense if instructed on it.
       CALCRIM No. 1863 would have informed the jury that defendant lacked the
necessary intent for theft if he had a good faith belief he had a right to the property, and
that if there was a reasonable doubt as to his intent, the jury must acquit. There was
evidence of defendant’s limited education, his problems with English and his inability to
read or write the language. There was direct evidence neither that he understood the
procedure for a lien sale, nor that he knew or intended that the credit union did not
receive notice. Even the DMV, charged with knowing the requirements of a lien sale,
failed to notice or act on the deficiencies in the lien sale documents and transferred title to
the Land Cruiser to defendant. While defendant failed to tell anyone about, or even open,
the returned letter, he kept it rather than discarding it. There was no evidence Hodges
told him about the possibility of a returned letter or his obligation to notify her if he
received one.
       Here, there is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” (Strickland, supra, 466
U.S. at p. 694 [80 L.Ed.2d at pp. 697-698].) Counsel’s failure to request an instruction
on the key point of his client’s defense, which would have supported his argument,
deprived defendant of his constitutional right to effective assistance of counsel and
requires reversal of his conviction.



embezzlement, (b) larceny or (c) obtaining property under false pretenses . . . ’ ”
(People v. Hunter (1957) 147 Cal.App.2d 472, 475.)

                                              12
                                             III
                          Substantial Evidence of Specific Intent
       Finally, defendant contends there was insufficient evidence he had the specific
intent to deprive the credit union of the Land Cruiser.6 Rather than point to a specific
area of insufficiency, defendant relies on the acquittal on the charge of theft by false
pretenses. He contends that acquittal shows the jury found the People failed to prove
defendant knowingly and intentionally deceived the Nasrudins as to his right to sell the
Land Cruiser. He argues, “Because there was no intent to defraud the buyers, there
similarly could be no intent to permanently deprive the credit union of the car.”
       Defendant relies too heavily on his acquittal. Inconsistent verdicts alone do not
establish insufficient evidence. “An acquittal of one or more counts shall not be deemed
an acquittal of any other count.” (§ 954; see People v. Pahl (1991) 226 Cal.App.3d 1651,
1656-1657.)
       “The law generally accepts inconsistent verdicts as an occasionally inevitable, if
not entirely satisfying, consequence of a criminal justice system that gives defendants the
benefit of a reasonable doubt as to guilt, and juries the power to acquit whatever the
evidence.” (People v. Palmer (2001) 24 Cal.4th 856, 860.) “[I]f an acquittal of one
count is factually irreconcilable with a conviction on another, or if a not true finding of an
enhancement allegation is inconsistent with a conviction of the substantive offense, effect
is given to both. [Citations.]” (People v. Santamaria (1994) 8 Cal.4th 903, 911.) “The
jury may have been convinced of guilt but arrived at an inconsistent acquittal or not true
finding ‘through mistake, compromise, or lenity . . . .’ [Citation.]” (Ibid.)




6  Although we reverse for ineffective assistance of counsel, we address this contention to
determine if defendant may be retried. “[A]n appellate reversal for insufficient evidence
is the functional equivalent of an acquittal at trial,” and bars retrial of the charges.
(People v. McCann (2006) 141 Cal.App.4th 347, 354.)

                                             13
       To establish defendant had the specific intent to deprive the credit union of its
ownership of the car, the People had to prove defendant knew the lien sale was invalid
and he knew the credit union had not given up its claim on the vehicle. The evidence on
this point was conflicting and dependent on determinations as to credibility. As we have
noted, ante, inconsistencies in defendant’s testimony could have caused the jury to
disregard it. Evidence of intent to commit a theft “is rarely demonstrated by direct proof,
and as a result, may be inferred from facts and circumstances.” (In re Leanna W. (2004)
120 Cal.App.4th 735, 741.)
       Here, defendant had known Hodges for several years and she often completed
paperwork for him. A reasonable jury could have concluded the transposing of numbers
on both the post office box and the zip code of the credit union’s address--the key
components of the address and apparently the only mistakes made--was simply too great
a coincidence to have been accidental. There was evidence from which the jury could
have inferred defendant was a part of this scheme, even if not the instigator. He gave
vague answers when the DMV investigators first questioned him, claiming not to
remember who left the Land Cruiser at his shop, as well as to whom he sold it. Many of
the figures defendant gave Hodges for the paperwork were suspect, suggesting the lien
sale was not in good faith. The People’s expert testified the transmission had not been
removed, casting doubt on defendant’s claim he performed any repairs on the Land
Cruiser. Further, defendant changed his story as to whether he installed a new
transmission or reinstalled the old one. Defendant claimed expenses for towing, although
he had been reimbursed. There was conflicting evidence of the sales price for the Land
Cruiser. The lien claim form stated a sales price of $750, with no indication of a trade-in.
The credit union later sold the vehicle for $7,575. Hodges testified she found defendant’s
figure for storage costs “ridiculous.”
       There was sufficient evidence to support a conviction for grand theft of an
automobile.

                                             14
                                       DISPOSITION
       The judgment is reversed. The People may elect to retry defendant within the time
specified in section 1382, subdivision (a)(2). In light of the reversal due to ineffective
assistance of counsel, the clerk of this court is directed to give the required notice to the
State Bar and to trial counsel. (Bus. & Prof. Code, § 6086.7; Cal. Rules of Court, rule
10.1017.)




                                                          DUARTE                , J.



We concur:



      ROBIE                  , Acting P. J.



      MURRAY                 , J.




                                              15
