Pursuant to People v. Saddler (1979) 24 Cal.3d 671, 682–683 CC 361 should not be given if there is no evidence that defendant failed to deny or explain incriminating evidence. Furthermore, People v. Cortez (2016) 63 C4th 101 held that CC 361 should only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge.” (63 C4th at 117; see also Defendant’s Failure to Explain or Deny Evidence: CSC Adopts the Narrower View of When CC 361 Should Be Given July 14th, 2016
Nevertheless, People v. Grandberry (2019) 35 Cal.App.5th 599, 609 approved use of the instruction “when a testifying defendant has failed to explain or deny matters within the scope of relevant cross examination, not simply those matters that were asked of the defendant on cross examination.” Grandberry should be rejected as generally inconsistent with the spirit of Saddler and Cortez and specifically contrary to the holdings in People v. Roehler (1985) 167 Cal.App.3d 353, 392 [“If a defendant has not been asked an appropriate question calling for either an explanation or denial, the instruction cannot be given, as a matter of law”] and People v. Vega (2015) 236 Cal.App.4th 484, 497 [noting restrictions for when the instruction may be given and quoting Roehler].)
Notwithstanding the above, if a court sides with Grandberry, it would still be necessary for the court to first find, as a matter of law, that:
(1) that the matter was within the scope of relevant cross examination;
(2) that the defendant knew the facts necessary to explain or deny incriminating evidence or if some circumstance precluded the defendant from knowing such facts; and
(3) that the defendant failed to explain or deny the incriminating evidence.
On the other hand to follow Roehler, et. al. the court must find as a matter of law:
(1) that a question was asked that called for an explanation or denial of incriminating evidence;
(2) that the defendant knew the facts necessary to answer the question or if some circumstance precluded the defendant from knowing such facts; and
(3) that the defendant failed to deny or explain the incriminating evidence when answering the question.