People v. Misch CA1/4

Opinion

Filed 9/28/26 P. v. Misch CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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)