Does a defense counsel's failure to request a pinpoint instruction explaining that a subjective rather than objective test applies to reduce murder from first to second degree forfeited the argument?

First, an instruction explaining that a subjective rather than objective test applies to reduce murder from first to second degree is a pinpoint instruction (People v. Rogers (2006) 39 Cal.4th 826, 877-878; People v. Jones, supra, 223 Cal.App.4th at p. 1001), and defense counsel's failure to request a pinpoint instruction explaining that the objective test did not apply to reduction of murder from first to second degree forfeited the argument. (People v. Jones, supra, 223 Cal.App.4th at p. 1001.) Notably, defendant's trial attorney never argued his client was guilty (if at all) only of second degree murder. And the prosecutor never argued that an objective test applied to reduce murder from first to second degree.

Defendant relies on the nonforfeiture rule in section 1259: "The appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." However, because the jury was correctly instructed, there was no error affecting defendant's substantial rights. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 474-475.) And defendant's failure to request clarification of the otherwise correct instructions on murder and voluntary manslaughter forfeited his claim for purposes of this appeal. (People v. Whalen (2013) 56 Cal.4th 1, 81-82, disapproved on another point in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.)

Page 6

2. The jury was correctly instructed

Second, even if defendant did not forfeit his argument, the trial court's instructions on murder (CALCRIM No. 520),² first

Page 7

degree murder (CALCRIM No. 521),³ provocation (CALCRIM No. 522)⁴ and voluntary manslaughter (CALCRIM No. 570)⁵ were

Page 8