In what circumstances will the Attorney General be found liable for instructing a jury on a provocative acts murder theory?

^10. [footnote six in original text] We must address this issue on the merits if properly raised, because if the jury was misinstructed on one of two theories of liability, it was a legally insufficient theory. (See People v. Guiton, supra, 4 Cal.4th at pp. 1128-1131 [not resolving the exact standard of prejudice].) We note, however, that the claim raised on appeal does not match the objection lodged in the trial court: Trial counsel argued a separate underlying crime had to be alleged in order to justify instructing the jury on a provocative acts murder theory. When that objection was overruled, defense counsel explicitly agreed "with the current version of [CALCRIM No.] 560 as you have given it to us." Despite this arguable forfeiture, and because the Attorney General does not address it as such, we reach the merits of the current claim.

^11. [footnote seven in original text]