Does the Attorney General have any grounds to claim that defendant forfeited this claim on appeal?

The Attorney General contends that defendant forfeited this claim because he did not object below. Defendant contends that the instruction was an incorrect statement of the law, and that the instructional error affected his substantial rights, such that his failure to object in the trial court did not result in forfeiture of this claim on appeal. (See People v. Hudson (2006) 38 Cal.4th 1002, 1012 [forfeiture rule does not apply when "the trial court gives an instruction that is an incorrect statement of the law"]; Pen. Code, 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"].)

If defendant is correct that the instruction was incorrect because it added an erroneous element to the transitory possession defense, his substantial rights would be affected. (See People v. Hillhouse (2002) 27 Cal.4th 469, 503.) Thus, we will review the merits of defendant's claim.