In People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11 the attorney general contended that the defendant forfeited any objection to various instructions because he failed to object to them in the trial court.
The CSC responded by differentiating between an instruction which is “incorrect in law” — which does not require an instruction below – and an “otherwise correct instruction” for which trial counsel failed to seek modification or clarification:
Where, however, a defendant asserts that an instruction is incorrect in law an objection is not required. [Citation.].) We apply this principle to all such instructional claims except to those where we explicitly conclude that defendant’s failure to seek modification or clarification of an otherwise correct instruction resulted in forfeiture.
Hence, appellate counsel must explain why the challenged instruction is not “otherwise correct” absent the modification or clarification.
