It was not a denial of due process to instruct the jury with CALCRIM No. 361. In an appeal from his conviction for attempted murder and mayhem, appellant challenged CALCRIM No. 361, which instructed the jury that it could consider his failure to explain or deny incriminating facts. The appellate court rejected the challenge, found the instruction constitutional, and affirmed. CALCRIM No. 361 is similar to the content of CALJIC No. 2.62 which was upheld in People v. Saddler (1979) 24 Cal. 3d 671. The Saddler court emphasized that the instruction cautions that the failure of a defendant to explain or deny does not create a presumption of guilt or relieve the prosecution of its burden. Similar cautionary language is included in CALCRIM No. 361. Further, Evidence Code section 413 allows a trier of fact to consider a party’s failure to explain or deny evidence.