The Court of Appeal found the trial court erred in instructing the jury with CALCRIM No. 361. The prosecutor relied on alleged failures by the defendant to explain or deny evidence based solely on statements the defendant made—or did not make—before trial. As such, none of them warranted application of CALCRIM No. 361, which addresses a testifying defendant’s failure to explain or deny incriminating trial evidence. Given the closeness of the case, the inconsistencies between defendant’s trial testimony and the prosecutor’s evidence, and the prosecutor’s focus on the inconsistencies in defendant’s statements and testimony, this error was prejudicial, requiring reversal of the convictions.
