Can a failure to instruct the jury on the section 511 defense be cured?

"It is true that a failure to instruct where there is a duty to do so can be cured if it is shown that 'the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.' [Citation.]" (People v. Stewart, supra, 16 Cal.3d at p. 141, 127 Cal.Rptr. 117, 544 P.2d 1317.) In the instant case, however, under the instructions given by the court, we conclude that the jury did not necessarily find that appellant lacked [167 Cal.App.3d 757] a good faith belief that he was acting pursuant to a

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The court's failure to properly instruct the jury on the section 511 defense was prejudicial error.

As to what constitutes a proper instruction on the section 511 defense, we find an advisory comment from the court in People v. Yarbrow (1978) 86 Cal.App.3d 445, 446, 150 Cal.Rptr. 324, to be instructive: "In case of a retrial, and the giving of an instruction on section 511 of the Penal Code, we see no reason not to give the complete applicable portion of the section rather than omitting a few words: [p] 'Upon any indictment for embezzlement, it is sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable.' "