Does the Attorney General's argument that appellant forfeited his substantial rights by failing to object to the Court's instruction below?

^4. Appellant did not object to this instruction and in fact agreed that it should be given. Nonetheless, we reject the Attorney General's argument that appellant forfeited this claim by failing to object to the court's instruction below. (See People v. Guerra (2006) 37 Cal.4th 1067, 1138 [forfeiture upon failure to request that otherwise correct instruction be clarified], overruled on another ground in People v. Randle (2008) 43 Cal.4th 76, 151, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, see also discussion, fn. 16, ante.) Appellant claims the instruction does not correctly state the law and affects his substantial rights. Thus, even in the absence of an objection we may consider the merits of a challenge to a jury instruction, if the instruction affected the appellant's substantial rights. (Pen. Code, 1259; People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [no forfeiture when "trial court gives an instruction that is an incorrect statement of the law"].) Thus, we may address his claim on appeal.

^5. Counts 8 and 9 were renumbered as 1 and 2 respectively in the second trial.