P. v. Smith
Defendant appeals from the judgment entered following a jury trial in which he was convicted of theft with a prior theft related conviction and his admission that he had suffered a prior conviction under the Three Strikes law. He contends his trial counsel rendered ineffective assistance by conceding guilt in closing argument, the trial court had a sua sponte duty to instruct on mistake of fact and claim of right, the trial court abused its discretion in imposing an upper term sentence, and the upper term violated Cunningham v. California (2007) U.S. [127 S.Ct. 856]. Court conclude there is merit in defendants claim of instructional error and reverse on that basis without reaching defendants other issues.
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