People v. Schneider CA3

DISCUSSION

Without objection, the trial court instructed with CALCRIM No. 361, regarding a defendant’s failure to explain or deny adverse testimony: “If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.” Defendant contends the trial court erred in giving CALCRIM No. 361 because there was no evidentiary basis for its applicability. “The appellate court may . . . review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (Pen. Code, § 1259.) Thus, we review the instruction to determine if it affected defendant’s substantial rights. As we explain, it did not because there was no prejudice in the court giving this instruction. “In order for [CALCRIM No.…