Error and/or relief
Because of error in instructing the jury with CALCRIM 361, we reverse the convictions and remand for further proceedings. The trial court erred by instructing the jurors with CALCRIM No. 361 because the defendant’s testimony did not represent a complete failure to explain or deny incriminating evidence, nor did he claim a lack of knowledge about something incriminating that he could reasonably be expected to have known.
First Holding:
It is error to instruct on failure to explain or deny where defendant did not fail to explain or deny.
Authority:
People v. Cortez (2016) 63 Cal.4th 101
Second Holding:
We review a claim of instructional error de novo.
Authority:
People v. Parker (2022) 13 Cal.5th 1, 66
People v. Cole (2004) 33 Cal.4th 1158, 1217
Third Holding:
That there was a prior hung jury may be persuasive on the question of the prejudice from the error.
Authority:
People v. Soojian (2010) 190 Cal.App.4th 491, 520