How do we review a claim of instructional error?

We independently review a claim of instructional error. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) We "must consider whether there is a reasonable likelihood that the trial court's instructions caused the jury to misapply the law in violation of the Constitution. [Citations.] The challenged instruction is viewed 'in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.' [Citation.]" (Ibid.; People v. O'Malley (2016) 62 Cal.4th 944, 991.)

The People are correct that this claim has been forfeited because appellants did not object or seek a clarifying instruction below. (See People v. O'Malley, supra, 62 Cal.4th at p. 991.) Although a defendant may raise a claim that his substantial rights were affected by instructions to which he did not object (see 1259; People v. Anderson (2007) 152 Cal.App.4th 919, 927), as we explain, appellants fail to make such a showing here.¹⁰

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