Does the Attorney General's failure to instruct the jury on a claim of right defense constitute ineffective assistance of counsel?

Defendant cities and relies on People v. Hussain (2014) 231 Cal.App.4th 261, but that case is inapposite. In Hussain, a jury convicted the defendant of theft by larceny, and the defendant argued court error and ineffective assistance of counsel resulted in the failure to instruct the jury on the claim of right defense. (Id. at p. 268.) The appellate court found no trial court error, but decided counsel's failure to request a claim of right instruction constituted prejudicial ineffective assistance of counsel. (Id. at pp. 271-272.) However, the Attorney General in Hussain conceded substantial evidence supported giving a claim of right instruction. (Id. at p. 264.) The Attorney General makes no similar concession here.

2. Custody Credits

The court awarded defendant 269 actual days presentence custody credits, and 40 days conduct credits, using the 15 percent limitation on the accumulation of conduct credits of section 2933.1. Section 2933.1 applies to violent felonies, but not to attempt unless the charge is attempted murder. (People v. Reed (2005) 129 Cal.App.4th 1281, 1284-1285, fn. 1.) Defendant was convicted of attempted robbery. Therefore, the court should have used the more generous presentence custody credit

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calculation provided for in section 4019. The Attorney General concedes the error and we modify the judgment, accordingly.