CALCRIM No. 361, which permits the jury to draw inferences from a testifying defendant’s failure to explain or deny evidence against him, is not unconstitutional and was properly given in this case. Vega was convicted of the first degree murder of Tucker (which occurred in 2010) and the voluntary manslaughter of Angel (which occurred in 2011). The jury found true two special circumstances and various gang and weapons-related sentencing enhancements. At trial, Vega testified in his own defense and the trial court instructed the jury with CALCRIM No. 361 that they may draw inferences from Vega’s failure to satisfactorily explain or deny the evidence against him. On appeal, Vega argued that CALCRIM No. 361 is unconstitutional. Held: Affirmed on this point. CALCRIM No. 361 instructs the jury that it may consider a defendant’s failure to explain or deny evidence against him, if he could reasonably be expected to have done so based on what he knew, when evaluating the evidence. (See also Pen. Code, § 1127; CALJIC 2.62.) The instruction is not to be given every time a defendant testifies, and the courts and the bench notes for the instruction impose limitations. However, when a defendant testifies and fails to deny or explain inculpatory evidence or gives a bizarre or implausible explanation, the instruction is proper. In this case, the Court of Appeal followed People v. Saddler (1979) 24 Cal.3d 671, 675, and People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1067-1068, and concluded that CALCRIM No. 361 is constitutional. The instruction was also properly given in this case. Vega’s testimony at trial regarding Tucker’s killing conflicted with the statement he gave to police and his explanations for the evidence against him were implausible. Any error in giving the instruction was harmless.
Gang participation conviction (Pen. Code, § 186.22, subd. (a)) reversed for insufficient evidence because Vega did not act in concert with another gang member. Vega, a professed gang member, was catching up with an old friend, Giovanni, when a rival gang member, Angel, approached. Vega made gang-related verbal challenges to Angel and it was unclear whether Giovanni joined Vega in making the challenges. A fistfight broke out between Vega and Angel. Vega ultimately stabbed and killed Angel. The jury convicted Vega of voluntary manslaughter and gang participation (Pen. Code, § 186.22, subd. (a)). On appeal, Vega argued that there was insufficient evidence to uphold the gang participation conviction under People v. Rodriguez (2012) 55 Cal.4th 1125, which was decided two months after the verdicts in the case. The Court of Appeal agreed. Rodriguez clarified that the gang participation offense requires the participation of at least two members of the same gang in felonious conduct. Here, there was insufficient evidence that Giovanni was a gang member, or that he participated in the felonious conduct. Vega testified that Giovanni was not involved in the altercation and other witnesses testified that Giovanni was standing back 15 feet from Vega and Angel while they were fighting. The jury was not instructed on the issue and it could not be determined from the record whether the jury found that two or more members of Vega’s gang participated in the stabbing.