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People v. Hussain

California Court of Appeals, Third District, Sacramento

November 6, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
ALIM HUSSAIN, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, No. 12F01772 Emily Vasquez, Judge.

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COUNSEL

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 Attorneys General, for Plaintiff and Respondent.

OPINION

DUARTE, J.

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.

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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.

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's 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

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never 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 ...


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