Trial court may properly instruct the jury with CALCRIM No. 361 when a testifying defendant fails to explain or deny matters that are within the scope of relevant cross-examination, even if he is not directly questioned about the incriminating evidence. A jury convicted defendant of unlawful possession of a dirk or dagger while confined in state prison. On appeal he argued it was error for the trial court to instruct the jury that it could draw unfavorable inferences from his failure to explain or deny incriminating evidence in his testimony (CALCRIM No. 361) because he did explain or deny evidence he was asked about. Held: Affirmed. The challenged jury instruction applies only when a testifying defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could be reasonably expected to have that knowledge. After analyzing relevant case law, the court concluded that CALCRIM No. 361 may be given “when a testifying defendant has failed to explain or deny matters within the scope of relevant cross-examination, not simply those matters that were asked of the defendant on cross-examination.” Here, defendant testified that he understood and agreed to a prison classification committee’s action placing him in administrative segregation as a result of the charged conduct, but failed to explain why he did so if he were innocent of the charges. A classification chrono detailing the administrative action was in evidence and stated that defendant “agreed” with the action placing him in administrative segregation. Why he would have agreed to the action if he was innocent of the weapons charge was plainly within the scope of permissible cross-examination and provided an evidentiary basis for CALCRIM No. 361. The fact that defendant was not directly questioned about his acceptance of punishment for the weapons charge did not matter. The court also rejected a due process challenge to the instruction.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A152188.PDF