Is a Defendant's failure to object or request a clarifying instruction below forfeits his ability to challenge the given instruction?

California, United States of America


The following excerpt is from People v. McIntee, B280917 (Cal. App. 2018):

5. The Attorney General contends that defendant's failure to object or request a clarifying instruction below forfeits his ability to challenge the given instruction here. We disagree. "When the trial court gives an incorrect or incomplete instruction that allegedly affects the substantial rights of a defendant, it is reviewable even if no objection was raised in the trial court." (People v. Denman (2013) 218 Cal.App.4th 800, 812; see also People v. Hudson (2006) 38 Cal.4th 1002, 1012; 1259.) Because we conclude that the argument was preserved, we need not address defendant's contention that his counsel was ineffective for failing to present this issue below.

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