In People v. Cortez, S211915 (B233833; nonpublished opinion; (Cal. Sept. 18, 2013) the Supreme Court granted the prosecution’s petition for review to consider, the following issues: In the petition for review the attorney general characterized these issues as follows:
1. May a court instruct the jury with CALCRIM No. 361 on the failure to explain or deny evidence where a defendant’s testimony is implausible or contains logical gaps?
2. Did the Court of Appeal err by reversing the conviction of defendant Cortez due to error in admitting a statement made by defendant Bernal to his nephew, error in instructing the jury with CALCRIM No. 361, and prosecutorial misconduct.
3. Is a statement that implicates a non-testifying codefendant admissible where it is against the declarant’s interest, inextricably tied to and part of the statement against interest, and made under circumstances that this Court and the Court of Appeal have repeatedly deemed to demonstrate trustworthiness?
4. Did the prosecutor commit prejudicial error in rebuttal argument by making a brief and isolated statement regarding reasonable doubt that the jury’s “belief” must not be “imaginary” but rather be “based in the evidence in front of me” after the jury was properly instructed on the standard of proof and to follow the trial court’s instructions
With respect to the CC 361 issue the defendant’s briefing in the California Supreme Court argued that CC 361 “is justified by an “implausible” explanation only if the explanation fails to account for undisputed physical evidence or long gaps of time-in other words, if it is not really an ‘explanation’ at all. No case holds CALCRIM No. 361 is warranted merely because the defendant’s explanation involves an arguably less likely interpretation of the evidence.” (See PEOPLE v. CORTEZ, 2014 CA S. Ct. Briefs LEXIS 1857; see also (People v. Kondor (1988) 200 CA3d 52, 57; see also People v. Saddler (1979) 24 C3d 671, 682; People v. Lamer (2003) 110 CA4th 1463, 1469