Cabral

FACTUAL AND PROCEDURAL BACKGROUND

Jeffrey Christensen gave his employee Rick Dale Cabral a blank check to weigh a trailer, but Cabral made the check payable to cash, wrote in $1,000 as the amount, and cashed the check at a bank. He told the police both that he had Christensen’s permission to cash the check and that he did not have permission but cashed the check anyway because Christensen owed him the money. A jury found him guilty of forgery. (Pen. Code, § 470, subd. (d).)

On appeal, Cabral argues, inter alia, that instruction on late defense discovery prejudiced him. The Attorney General argues the contrary. We will agree with Cabral and will reverse the judgment on that ground. Accordingly, we will not address his other issues.

DISCUSSION

Preliminarily, the Attorney General argues Cabral forfeited his right to appellate review by failing to object to the instruction he now challenges on appeal. Applying the established rule that allows appellate review, even in the absence of an objection, of any instruction affecting the substantial rights of the accused, we reject that argument. (Pen. Code, § 1259; People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7 [ 3 Cal.Rptr.3d…