People v. Grandberry
35 Cal. App. 5th 599
Cal. Ct. App. 5th2019Background
- Grandberry, a state prisoner, was charged with unlawful possession of a dirk or dagger while confined (§ 4502(a)); tried by jury and convicted.
- During a random cell search in October 2015 officers found a manufactured weapon concealed between two pairs of boxer shorts that appeared sewn together; officers later placed Grandberry in administrative segregation.
- At a classification hearing Grandberry was recorded as saying he "screwed up" and was "being a bozo;" a separate classification chrono stated he "expressed his understanding of the basis of the ICC action and agreed with the action."
- Grandberry testified at trial that he had only one pair of boxer shorts, denied ownership of the weapon and denied making the "screwed up" statement; he acknowledged receipt of the chrono and agreed it was accurate but said he did not appeal.
- Trial court gave CALCRIM No. 361 (adverse inference from defendant’s failure to explain or deny evidence); Grandberry appealed, arguing the instruction was improper and violated due process; the court of appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CALCRIM No. 361 was properly given | People: Grandberry failed to explain why he "agreed" to classification action if innocent; this silence was within his knowledge and supports the instruction | Grandberry: He explained/denied the incriminating evidence; no unanswered, peculiarly within-his-knowledge fact remained; instruction therefore improper | Proper: Jury could infer significance from Grandberry’s failure to explain his acceptance of the ICC action; CALCRIM No. 361 was appropriate |
| Whether instruction is limited to subjects actually asked on cross-examination | People: Instruction may be given where matter was within scope of relevant cross-examination, not only if directly asked on cross | Grandberry: Instruction allowed only where defendant was asked an appropriate question and failed to answer (Roehler reading) | Court: Saddler permits instruction when defendant failed to explain matters within scope of relevant cross-examination, not only those actually asked; Roehler and similar cases rejected |
| Whether CALCRIM No. 361 violates due process by privileging prosecution | People: Instruction is a permissible consequence of a defendant being the only testifying party and accords with Evid. Code § 413 | Grandberry: Singling out defendant’s testimony for adverse scrutiny is unfair and advantages prosecution | Reject: Precedent (Mayberry, Saddler, Rodriguez, Vega) permits considering a testifying defendant’s failure to explain; no due process violation |
| Forfeiture of challenge due to lack of trial objection | People: No forfeiture because instruction only applies if supported by evidence, and appellate review can ascertain prejudice | Grandberry: (implicit) contested on appeal | Court: Reached merits; decline to treat as forfeited because claim asserts instructional error affecting substantial rights |
Key Cases Cited
- People v. Cortez, 63 Cal.4th 101 (Cal. 2016) (limits application of failure-to-explain instruction to situations where defendant failed to explain facts peculiarly within his knowledge)
- People v. Saddler, 24 Cal.3d 671 (Cal. 1979) (explains evidentiary foundation required before instructing jury it may draw adverse inferences from defendant’s silence)
- People v. Perez, 65 Cal.2d 615 (Cal. 1967) (allows inference instruction when defendant testifies but remains silent on related matters within scope of cross-examination)
- People v. Mayberry, 15 Cal.3d 143 (Cal. 1975) (rejects claim that failure-to-explain instruction unduly focuses on defendant’s testimony)
- People v. Vega, 236 Cal.App.4th 484 (Cal. Ct. App. 2015) (discusses proper use of CALCRIM No. 361 and limits on giving the instruction)
- People v. Rodriguez, 170 Cal.App.4th 1062 (Cal. Ct. App. 2009) (upholds constitutionality of CALCRIM No. 361 against due-process challenge)