P. v. Misch CA1/4

Filed 9/28/26 P. v. Misch CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A173861
v.
DAVID MISCH, (Alameda County
Super. Ct. No.
Defendant and
18-CR-004109)
Appellant.

In this appeal from two murder convictions, defendant
contends the trial court abused its discretion by denying his
motion to dismiss for an alleged denial of due process caused by
lengthy precharging delay. He also argues that the court
committed prejudicial error by instructing the jury with
CALCRIM No. 361. We affirm.
BACKGROUND
The victims, best friends Michelle Xavier and Jennifer
Duey, were 19 and 20 years old, respectively, in February 1986.
Xavier was dating Mike W. and Duey was dating Matt S. The
two men were friends, and, on the night of February 1, 1986,
Matt S. went to Mike W.’s house and Xavier and Duey came over
at around 8:00 p.m. The women wanted to go bowling, but Mike

1
W. and Matt S. decided to go out to bars with friends. Mike W.
and Matt S. left Mike W.’s house, went to a friend’s, and then
went to the 7-Eleven store close to Mike W.’s house for beer
where they ran into Xavier and Duey at about 10:00 p.m. Matt S.
testified that he thought the girls planned to go from 7-Eleven to
Xavier’s house to watch a movie. Two other acquaintances saw
Xavier and Duey driving in Xavier’s car, a white convertible, at
around 10:15 p.m. about a block from the 7-Eleven, and it did not
seem like the women were in distress or being followed.
At around 11:18 p.m., Y. Silva, who lived in a remote area
off Mill Creek Road, heard a woman scream and a male respond
something like, “Shut up, you fucking bitch.” She also heard a
woman yell, “Leave my panties alone.” Y. Silva then heard a car
drive off. Shortly after 12:00 a.m. on February 2, 1986, the nude
bodies of Xavier and Duey were found by passersby in a turnout
on Mill Creek Road, while their clothes hung from tree branches
and a barbed wire fence.
When police arrived at the scene, Duey’s body was warm
with steam coming off of it; she had three bullet wounds and no
pulse, and there was no blood coming from her bullet wounds.
Duey had premortem contusions to her breast and face consistent
with blunt force trauma. Her fingernail clippings were preserved
as evidence.
Xavier’s throat was cut completely and there was no blood
coming from the wound. There was steam coming off of her
warm body when police arrived and blood covered her body and
pooled on the ground around her body. Xavier had writing in ink

2
on her palm that appeared to read, “A691U–”. Xavier and Duey
were pronounced dead at the scene.
On the afternoon of February 2, 1986, police located
Xavier’s car near a payphone in the shopping center parking lot
in Fremont. There was blood inside the car and a blood pattern
on a receipt and envelope that suggested a bloody knife had been
placed on the documents. Most of the blood stains in the car
appeared to be transfer and drip stains with no saturation stains,
suggesting that blood dripped or was transferred from something
onto the areas inside the car. Investigators found brush attached
to the underside of the car and mud on the tires. The victims’
purses were not recovered.
The case remained unsolved, and police subsequently used
DNA testing to analyze physical evidence in the case. In 2003,
DNA analysis of Duey’s fingernail clippings revealed defendant
as a major male donor of DNA with a very rare profile that occurs
in around one in 140 billion Caucasians. This result was
consistent with Duey’s fingernails making direct contact with
defendant, rather than an indirect transfer of DNA, and the
People’s DNA forensic expert testified that a handshake or
transitory contact would not have resulted in the amount of DNA
found. She also opined that sharing a cigarette would not
reasonably explain the presence and quantity of defendant’s DNA
under Duey’s fingernails, particularly because defendant was the
greater donor in the sample.
In May 2003, Detective Noey interviewed defendant, who
was in prison at the time, after Noey learned that the

3
Department of Justice had matched defendant to the DNA under
Duey’s fingernails. The first half of the interview was recorded
and the audio was played for the jury as an exhibit at trial. Noey
also testified about the interview and the notes he took regarding
the unrecorded half.
Noey testified that, in 2003 interview, he showed defendant
pictures of Xavier and Duey, but defendant said only that one
looked like his ex-girlfriend and the other looked like a missing
girl from the news. Noey told defendant he was investigating a
double homicide, and, at some point, defendant said the case was
a “done deal,” he would take the fall for it, and his family would
finally get rid of him. Noey took a sample of defendant’s DNA
pursuant to a search warrant. At that point, defendant said, “It’s
all over.” Defendant said the DNA would be his, and he would go
down for murder.
Thereafter, defendant said he had a hypothetical to pose,
and he asked Noey whether someone would be responsible for
murder if he or she knew that someone would get murdered but
did nothing. After some silence and further questioning by Noey,
defendant said he knew what had happened. He told Noey that
he saw two people try to pull Duey out of a phone booth at a gas
station, and he posited that his tissue (DNA) could have ended up
under Duey’s fingernails when he tackled one assailant and
inadvertently knocked Duey to the ground. Defendant said this
encounter happened in Hayward, but also later said that it was
at a gas station off the 680 highway near Mission Boulevard. The
latter description matched the location of the shopping center

4
where Xavier’s car was found, although Noey never told
defendant where Xavier’s car was found. Later in the interview,
defendant told Noey that everything he said was a lie, and he did
not commit the murders.
At trial, the People introduced evidence that defendant had
a motorcycle registered to him at the time of the murders with
the license plate number “9Y6910.” Renewed analysis of the
writing on Xavier’s hand identified the writing as either “A6910”
or “96910.”
In 2017, police confronted defendant and told him he would
be charged with the murders, and defendant attempted suicide in
prison a few days later. He left suicide notes for his family.
The People also introduced evidence at trial of defendant’s
violent conduct against women, including that he had raped a
woman while threatening her with a knife and threatened a
second woman with a knife on a different occasion when he was a
minor. As an adult, defendant beat a woman, raped a second
woman, and murdered a third woman, all on different occasions.
In his trial testimony, defendant admitted committing
violent, sexually motivated attacks against multiple women, but
he denied raping one of the victims. Defendant denied that he
frequently carried a gun, but he agreed he always carried knives.
Defendant testified that he was familiar with Xavier and
Duey. He met Duey in 1985 and sold her drugs many times.
Most of the time, he sold drugs to Duey while she was alone, but
on a couple occasions Xavier accompanied her. Defendant

5
testified that his motorcycle with the license plate number
9Y6910 was totaled in an accident in 1985.
On the night of the murders, Duey paged him to purchase a
large amount of cocaine. He met Xavier and Duey at a gas
station, which he could remember in detail at the time of trial
due to the large quantity of cocaine. Defendant said that he
shared one or two cigarettes with Duey. He admitted that he lied
to police and to his family about what occurred the night of the
murders, and he testified that he made up the story about
intervening to save Duey from a kidnapping. When defendant
was asked why his description of the location where the alleged
kidnapping occurred matched the description of the area where
Xavier’s car was found after the murders, defendant explained
that he first made up a story about the kidnapping being in
Hayward and the police insisted he change it so he just picked
680; he denied murdering Xavier and Duey. Defendant also
testified that he had truthfully talked to police in the beginning
of his 2003 interview, but police kept pressing him for a scenario
or story, so he said that he made up a “bullshit” story about
encountering the murder victims.
The defense called Staci D., who testified that between
10:30 p.m. and 11:00 p.m. on the night of the murders, she saw
Duey in a parked car similar to Xavier’s with a dark-skinned,
bald man; she testified that she had initially told police that she
could not identify the car’s occupants because she was young and
scared. Eric Pacheco told police that, around 10:00 p.m. on the

6
night of the murders, he saw Xavier’s car and another car parked
next to each other at Mission Valley Shopping Center.1
Defendant’s forensic expert testified that defendant’s DNA
under Duey’s fingernails could have been transfer DNA, and the
fact that defendant was the major donor was consistent with his
sharing a cigarette with Duey because saliva has more DNA than
skin.
The jury found defendant guilty of the first degree murders,
and the trial court sentenced defendant to 50 years to life in
prison. Defendant timely appealed.
DISCUSSION
I. Precharging Delay
Defendant asserts that the lengthy precharging delay in
this case violated his right to due process under the state and
federal Constitutions. We reject his claim for the reasons set
forth below.
A. Additional Background
The People filed a complaint against defendant for the 1986
murders in 2018. Shortly thereafter, defendant moved to dismiss
the case based on the precharging delay. The court denied that
motion without prejudice because defendant had relied on the
delay between 1986 and 2018 without providing a specific
showing of prejudice.

1 Other witnesses described two cars in the same parking

lot that Pacheco testified about, but they did not describe seeing a
white convertible.

7
In 2024, the defendant filed a second motion to dismiss
regarding the precharging delay. This motion focused on the
delay between 2003, when DNA testing revealed that defendant’s
DNA was under Duey’s fingernails, and the filing of the
complaint in 2018. Defendant argued that the precharging delay
was prejudicial because three witnesses — Carol Glace, Donald
Pounds, and Eric Pacheco — had died, and, based on their
statements to police, they would have provided testimony
refuting the prosecution’s timeline of events and other aspects of
the case. As a remedy, defendant sought dismissal, or, in the
alternative, the admission of the deceased witnesses’ statements
pursuant to People v. Booth (2016) 3 Cal.App.5th 1284 (Booth).
The People opposed, arguing that defendant’s counsel’s
hearsay declaration was not competent evidence of prejudice, and
that even if the court accepted the declaration, it did not
establish prejudice; the delay was justified; and the justification
for the delay outweighed any potential prejudice.
The court denied the motion to dismiss, concluding that the
hearsay declaration was insufficient to establish actual prejudice,
and, even if it were sufficient, defendant did not establish
prejudice. The court was “not particularly satisfied that any of
[the deceased] witnesses would have been able to provide any sort
of information that in any way detracts responsibility for the
accusations from [defendant].” The court reasoned that Pacheco’s
testimony, according to defendant’s argument, would be used to
corroborate the testimony of witness Staci D.2 But given Staci

2 The court referred to Staci D. by her maiden name.

8
D.’s testimony, defendant already had evidence placing people
other than himself in the company of the victims at a time shortly
before their bodies were discovered. As to Glace, the court agreed
with the prosecutor that if she were alive, the prosecution would
use her testimony as part of their motion to admit evidence under
Evidence Code sections 1101 or 1108. “So I don’t see Ms. Glace as
being somebody who is particularly dispositive as it pertains to
any sort of exonerating evidence as it relates to [defendant].”
Finally, as to the purported testimony of Pounds, who would
purportedly say that defendant did not carry guns or knives3,
that testimony would be contradicted by “an incredibly large
amount of testimony from other individuals to the contrary,”
including defendant’s own admission that he always carried a
knife. So, the argument that Pounds would “impact any of this in
any substantive way I think is speculative at best and, practically
speaking, would likely have little to no impact.”
The court subsequently ruled that, based on People v.
Conrad (2006) 145 Cal.App.4th 1175 (Conrad), and Booth, supra,
3 Cal.App.5th 1284, Pacheco’s statement to police regarding his
observations on the night of the murders should be admitted
during trial. Pacheco’s stipulated testimony was read to the jury,
and the jury was given an exhibit containing Pacheco’s statement
as well as the written questions and answers between Pacheco
and police.

3 In their opposition to the motion, the People represented

that Pounds in fact said he did not know whether defendant
carried guns or knives.

9
1. Governing Law and Standard of Review
“Defendant complains only of delay between the murder
and the time the state first charged him with the crime (hereafter
sometimes referred to as precharging delay). Although
precharging delay does not implicate speedy trial rights, a
defendant is not without recourse if the delay is unjustified and
prejudicial. ‘[T]he right of due process protects a criminal
defendant’s interest in fair adjudication by preventing unjustified
delays that weaken the defense through the dimming of
memories, the death or disappearance of witnesses, and the loss
or destruction of material physical evidence.’ [Citation.]
Accordingly, ‘[d]elay in prosecution that occurs before the accused
is arrested or the complaint is filed may constitute a denial of the
right to a fair trial and to due process of law under the state and
federal Constitutions. A defendant seeking to dismiss a charge
on this ground must demonstrate prejudice arising from the
delay. The prosecution may offer justification for the delay, and
the court considering a motion to dismiss balances the harm to
the defendant against the justification for the delay.’ ” (People v.
Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).)
“The prejudice to defendant must be balanced against the
justification for the delay. The state and federal constitutional
standards regarding what justifies delay differ. Regarding the
federal constitutional standard, [the California Supreme Court
has] stated that ‘[a] claim based upon the federal Constitution
also requires a showing that the delay was undertaken to gain a
tactical advantage over the defendant.’ ” (Nelson, supra,

10
43 Cal.4th at p. 1251; id. at pp. 1251–1257 [concluding the
federal standard is not fully clear but applying the California
standard as “at least as favorable for the defendant” and finding
defendant’s claim failed].)
“[U]nder California law, negligent, as well as purposeful,
delay in bringing charges may, when accompanied by a showing
of prejudice, violate due process. This does not mean, however,
that whether the delay was purposeful or negligent is irrelevant.
In Scherling [v. Superior Court (1978)] 22 Cal.3d [493,] 506–507,
[the California Supreme Court] said that because the ‘defendant
was not prejudiced by the delay, we need not determine whether
the delay was justified, particularly since there was no evidence
that the delay in prosecution was for the purpose of weakening
the defense.’ In Catlin, we found the justification for the delay
outweighed the defendant’s weak showing of prejudice, but we
also observed ‘that there was no evidence that the delay was
undertaken in order to gain an advantage over defendant . . . .’
([People v.] Catlin [(2001)] 26 Cal.4th [81,] 109–110.) As these
observations imply, whether the delay was negligent or
purposeful is relevant to the balancing process. Purposeful delay
to gain an advantage is totally unjustified, and a relatively weak
showing of prejudice would suffice to tip the scales towards
finding a due process violation. If the delay was merely
negligent, a greater showing of prejudice would be required to
establish a due process violation.” (Nelson, supra, 43 Cal.4th at
pp. 1255–1256.)

11
Whether the delay that occurs prior to the filing of a
criminal complaint is unreasonable and prejudicial to a
defendant is a question of fact. (People v. Dunn-Gonzalez (1996)
47 Cal.App.4th 899, 911–912.) If the trial court concludes the
delay denied the defendant due process or his constitutional
speedy trial rights, the remedy is generally dismissal. (Id. at
p. 912.) But a trial court has discretion to fashion a remedy other
than dismissal when the prosecutor’s conduct has resulted in a
loss of identifiable evidence favorable to the defense. (Conrad,
supra, 145 Cal.App.4th at p. 1185 [“When, as here, the delay in
prosecution resulted in the loss to the defense of identifiable
evidence, the prejudice to the defendant may be substantially
mitigated, even virtually eliminated, by presenting the evidence
to the jury through alternate means.”])
B. Analysis
Initially, we agree with the People that defendant forfeited
his claim that the precharging delay violated the federal
Constitution. Defendant does not discuss relevant federal
authorities or argue that the prosecution intentionally delayed
the proceedings to gain an advantage or recklessly disregarded
the possible prejudicial impact on the defendant. (United States
v. $8,850 (1983) 461 U.S. 555, 563 [“delay in instituting criminal
proceedings ‘can prevail only upon a showing that the
Government delayed seeking an indictment in a deliberate
attempt to gain an unfair tactical advantage over the defendant
or in reckless disregard of its probable prejudicial impact upon
the defendant’s ability to defend against the charges’ ”]; see also

12
Nelson, supra, 43 Cal.4th at pp. 1251–1254 [discussing federal
standard].) We therefore deem defendant’s federal claim
forfeited. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245,
fn. 14 [failure to present argument with references to record and
citation to legal authority results in a forfeiture]; Badie v. Bank
of America (1998) 67 Cal.App.4th 779, 784–785 [when an
appellant fails to raise a point or fails to support a point with
reasoned argument and citations to authority, it is forfeited].)
With respect to defendant’s claim under the California
Constitution, we first review the court’s conclusion that
defendant failed to establish prejudice. (People v. Alexander
(2010) 49 Cal.4th 846, 874.) We review this finding for
substantial evidence, and a showing of prejudice cannot be based
on speculation, or “the mere possibility of prejudice . . . .” (Id. at
pp. 874–875.) Defendant’s assertion of prejudice rests on the
death of three witnesses — Carol Glace, Donald Pounds, and Eric
Pacheco.
Starting with Glace and Pounds, defendant’s opening brief
does not discuss what evidence these witnesses would have
offered or the basis for the court’s factual findings that defendant
failed to establish prejudice with respect to these witnesses. The
following vague statement in defendant’s opening brief could
refer to Glace: “The proposed witnesses could also have provided
a context for at least the prior bad act testified to by [K.] Riley,
who had been [defendant’s] girlfriend, but who claimed he
forcibly raped her.” But even here defendant does not describe
what he means by “context” or offer any specific description of

13
what these witnesses’ testimony would have been. As presented,
we find defendant’s prejudice argument to be wholly speculative,
and defendant fails to satisfy his burden to discuss all relevant
evidence and show that the evidence was insufficient as a matter
of law to support the court’s findings.4 (See Schmidlin v. City of
Palo Alto (2007) 157 Cal.App.4th 728, 738 [party who challenges
sufficiency of evidence to support a particular finding must
summarize evidence on that point, favorable and unfavorable, “
‘and show how and why it is insufficient’ ”].)
In contrast to his insufficient briefing regarding Glace and
Pounds, defendant does briefly describe Pacheco’s testimony
(noting that Pacheco saw Xavier’s car and a second dark-colored
medium-sized car in the Mission Valley Shopping Center on the
night of the murders), and he contends that Pacheco’s
unavailability prejudiced him because live testimony is more
compelling than stipulated testimony. But the trial court
appropriately determined that Pacheco’s testimony should be
read to the jury and declined to dismiss the case. Specifically, the
court properly followed Conrad, supra, 145 Cal.App.4th 1175,
and Booth, supra, 3 Cal.App.5th 1284.

4 Defendant also briefly asserts: “Further prejudice is

obvious from the difficulty of [defendant] to locate other
witnesses to testify to his life and actions on the night in
question, and evidence surrounding his motorcycle evidence,
which could have raised a reasonable doubt as to his guilt.” This
conclusory assertion does not establish prejudice. (People v.
Alexander, supra, 49 Cal.4th at pp. 874–875.)

14
In Conrad, the defendant’s brother made a potentially
exculpatory statement to police in their investigation of the
defendant’s failure to register as a sex offender, but died before
trial. (Conrad, supra, 145 Cal.App.4th at pp. 1179–1181.)
Finding no justification for the precharging delay, the trial court
dismissed the case on due process grounds. (Id. at pp. 1181–
1182.) The appellate court reversed, recognizing that the
defendant had been prejudiced, but holding that dismissal was
too drastic a remedy where the lost testimony was material but
did not conclusively demonstrate the defendant’s innocence. (Id.
at pp. 1185–1186.) Conrad concluded that an intermediate
remedy between dismissal and no remedy was appropriate, the
prejudice to the defendant could be substantially mitigated or
even virtually eliminated by presenting the brother’s testimony
through alternate means, and it ordered the trial court on
remand to admit the defendant’s brother’s hearsay statement at
trial. (Ibid.)
Booth involved a deadly shooting in 1992, murder and gang
charges filed in 2011, and an eyewitness who had exonerated
defendant but could not be found by the time of trial. (Booth,
supra, 3 Cal.App.5th at pp. 1287–1288, 1295.) The court granted
the defendant’s habeas petition based on his counsel’s ineffective
representation in failing to move to dismiss the case on account of
precharging delay. (Id. at pp. 1301–1312.) As the remedy,
following Conrad, Booth ordered a retrial wherein the jury would
hear the exculpatory statements made by the unavailable
witness. (Id. at pp. 1312–1314.)

15
Similar to Conrad and Booth, Pacheco’s testimony
potentially placing Xavier and Duey with people other than
defendant at around 10:00 p.m. on the night of their deaths was
material, but his testimony did not conclusively demonstrate
defendant’s innocence. The court thus properly determined that
the prejudice from Pacheco’s death could be substantially
mitigated or virtually eliminated by presenting his testimony
through alternate means. (Conrad, supra, 145 Cal.App.4th at
pp. 1185–1186; Booth, supra, 3 Cal.App.5th at pp. 1312–1314.)
Pacheco’s stipulated testimony was thus read to the jury, and the
jury also received Pacheco’s testimony as an exhibit. Further,
Staci D. testified for the defense that she saw the victims in
Xavier’s car with two people between 10:30 and 11:00 on the
night of the murders, and the jury also heard the stipulated
testimony of Pacheco’s friend, who told police that, at around 9:35
p.m. to 9:45 p.m. that night, he saw a small white car that
appeared to be a hatchback along with a small dark sports car
while waiting to be picked up at Mission Valley Shopping Center
with Pacheco. Thus, even assuming there was no explanation or
justification for the precharging delay at issue, defendant
received due process and a fair trial, and the court appropriately
determined that Pacheco’s death did not require dismissal of the
case. (Conrad, at p. 1186.)
II. The Instructional Error Claim
Defendant next asserts that the court prejudicially erred by
instructing the jury with CALCRIM No. 361. For the reasons
explained below, we disagree with this contention as well.

16
Without objection, the trial court instructed the jury with
CALCRIM No. 361: “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 upon 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.” The parties did not discuss this instruction during
closing arguments.
“CALCRIM No. 361 rests on the logical inference that if a
person charged with a crime is given the opportunity to explain
or deny evidence against him or her but fails to do so, then that
evidence may be entitled to added weight. [Citation.] The focus
of the instruction, ‘as its language indicates, is not on the
defendant’s credibility as a witness, but on the role of a testifying
defendant’s failure to explain or deny incriminating evidence in
how jurors “evaluat[e] that evidence,” i.e., the evidence the
defendant has failed to explain or deny.’ [Citations.] However, in
discussing a substantially similar pattern instruction — CALJIC
No. 2.62 — our high court recognized ‘ “It is an elementary
principle of law that before a jury can be instructed that it may
draw a particular inference, evidence must appear in the record
which, if believed by the jury, will support the suggested
inference.” ’ [Citation.] Thus, CALCRIM No. 361 ‘is not to be

17
given every time a defendant testifies.’ ” (People v. Grandberry
(2019) 35 Cal.App.5th 599, 605–606.)
CALCRIM No. 361 “applies 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.” (People v. Cortez (2016) 63 Cal.4th 101, 117.) The
instruction acknowledges to the jury the reasonable inferences
that may flow from silence when the defendant fails to explain or
deny. (Ibid.) Where the defendant denies or explains
incriminating evidence, the instruction should not be given even
if the defendant’s denial or explanation is “improbable,
incredible, unbelievable, or bizarre.” (Ibid.) However, where a
defendant claims that he or she did not know information that he
or she “ ‘could reasonably be expected to know’ ” from the
evidence, the instruction is appropriate. (Id. at p. 121.)
“Accordingly, the task of the reviewing court in examining a
claim that a CALCRIM No. 361-based jury instruction was
improperly given is ‘to ascertain if [the] defendant . . . failed to
explain or deny any fact of evidence that was within the scope of
relevant cross-examination’ and was ‘within [the defendant’s]
knowledge which he did not explain or deny.’ ” (People v.
Grandberry, supra, 35 Cal.App.5th at p. 606.)
Upon our de novo review of the record (People v.
Grandberry, supra, 35 Cal.App.5th at p. 604), we conclude that

18
no instructional error occurred.5 During cross-examination
regarding his prior crimes, defendant testified that he raped a
woman at a neighbor’s house after the victim happened to enter
the home. He admitted the rape occurred and that he strangled
the victim after. However, he testified that the rape was not
planned and he was unsure at the time why he walked the victim
back to a bedroom with a knife. When asked whether his recent
breakup with his girlfriend had caused him to rape the victim,
defendant said, “I don’t know.” Defendant could reasonably be
expected to know why he decided to rape the victim, and the jury
could draw an inference that he formulated his plan to commit
the crime because of rejection and anger. This, in turn, was
relevant because the jury was instructed that uncharged offenses
could be considered to establish identity, intent, motive, or
common plan, and the prosecutor argued that defendant was
motivated by sexual rejection and anger for both his earlier rape
and the murders of Xavier and Duey.
Additionally, the prosecutor presented evidence that
numbers written on Xavier’s hand partially matched defendant’s
motorcycle’s license plate number. Defendant testified his
motorcycle was totaled in a 1985 accident, but the police observed
only minor damage. On cross-examination, defendant testified
that he never saw his motorcycle again after 1985 and he
“[a]bsolutely [did] not” recall having a motorcycle thereafter.

5 We review this claim on the merits because defendant

argues that the instructional error affected his substantial rights
(§ 1259) and the People do not argue the claim was forfeited.

19
However, defendant also agreed on cross-examination that, in the
beginning of the 2003 police interview, he told police that he did
not drive or ride his motorcycle through Fremont when asked
about a 1989 timeframe. Defendant denied having a motorcycle
in 1989, and the prosecutor asked, “Why would you have
volunteered you wouldn’t even ride your motorcycle in Fremont if
you didn’t have a motorcycle?” Defendant responded, “Not even
sure.” Defendant could reasonably be expected to know why he
mentioned driving his motorcycle in 1989 to police, and an
inference could be made that he did so because he in fact had a
motorcycle. This evidence, in turn, was relevant to assessing
defendant’s testimony that he totaled his motorcycle in 1985 and
did not have the motorcycle thereafter. In sum, substantial
evidence supported giving CALCRIM No. 361. (People v. Barrett
(2025) 17 Cal.5th 897, 992 (Barrett) [similar instruction proper
where defendant could not recall how he cut murder weapon out
of desk but testified it takes a while to do so and he had done it
before].)
Finally, even if error occurred here, it was harmless under
People v. Watson (1956) 46 Cal.2d 818, 836. “Any harmful impact
of the instruction was mitigated by its very language,” which
explained to jurors that the instruction applies only if the
defendant failed in his testimony to explain or deny evidence
against him which he could reasonably be expected to deny or
explain because of facts within his knowledge and that any such
finding is not enough to prove guilt. (People v. Barrett, supra,
17 Cal.5th at p. 993 [applying Watson standard and finding

20
harmless error in giving similar CALJIC instruction].) In
addition, the jury was instructed on witness credibility and
inconsistencies (CALCRIM No. 226) and told to disregard
instructions that were not applicable to the facts (CALCRIM
No. 200). The instructions themselves thus minimized any harm.
The evidentiary record further demonstrates harmlessness.
Defendant’s DNA was under Duey’s fingernails, he attempted to
kill himself after learning he would be charged with the murders,
he readily admitted that he lied frequently, he had an extensive
history of violence against women (including with knives), and
the prosecutor did not reference CALCRIM No. 361 in closing
argument. Moreover, defendant’s efforts to explain or deny the
critical portions of the prosecution’s case — including his
testimony about sharing cigarettes with Duey, and why he told
police in 2003 that it was “all over” and invented a story about
encountering the victims — were weak and unpersuasive.
Accordingly, considering the instructions and the record as
a whole, we cannot conclude defendant would have obtained a
more favorable result if this instruction had not been given. (Cf.
People v. Barrett, supra, 17 Cal.5th at p. 993.)
DISPOSITION
The judgment is affirmed.
BROWN, P. J.
WE CONCUR:

STREETER, J.
GOLDMAN, J. People v. Misch (A173861)

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