What is the test for a defendant to argue that the court erred in its instruction to the jury in an assault case?

Section 1138 sets forth the procedure for the trial court to follow when a jury asks a question of the court. "[T]he information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." ( 1138.) The court followed that procedure. Defendant argues the court erred in that it "had a duty to clarify the everyday meaning of the phrase 'intent to kill' in language that the jury could understand." As the Attorney General points out, section 1138 "does not mean the court must always elaborate on the standard instructions." (People v. Beardslee (1991) 53 Cal.3d 68, 97.)

There are a number of flaws in defendant's argument. First, counsel not only did not object to the court's proposed response to the jury, but also expressly agreed with the response, the issue has not been preserved for appeal. ( 1259.) Although there are occasions when a failure to object to an instruction will not preclude consideration of the issue on appeal (see People v. Charles (2015) 61 Cal.4th 308, 329; 1259 [appellate court may review instruction, "though no objection was made" below, if defendant's substantial rights were implicated]) that rule does not apply here. The failure to redefine "intent to kill," other than to say the phrase carries its everyday meaning does not involve the defendant's substantial rights.