*260*601After a jury trial, appellant Henry Lee Grandberry was found guilty of unlawful possession of a dirk or dagger while confined in state prison. ( Pen. Code,
I. BACKGROUND
On January 13, 2017, the Del Norte County District Attorney filed an information charging Grandberry with a single felony count of unlawful possession of a dirk or dagger while confined in state prison. ( § 4502, subd. (a).) The information further alleged two prior strike offenses (§§ 667, subds. (b)-(i), 1170.12)-a 1996 conviction for first degree murder (§ 187, subd. (a)) and a 1988 conviction for second degree robbery (§ 211). An additional special allegation claimed Grandberry had served a prior prison term within the meaning of section 667.5, subdivision (b).
Jury trial commenced on April 10, 2017. At trial, the prosecution presented evidence regarding a random search conducted by correctional officers on October 27, 2015, in section B on the A yard of Building 7 at Pelican Bay State Prison. At the time of the raid, most of the inmates from B section were in the dayroom having recreational time. Those inmates who chose not to participate in dayroom, like Grandberry, remained locked in their cells. While the majority of the correctional officers went to the dayroom, instructing the inmates there to lie prone on the ground until they could be searched, other officers simultaneously reported to the cells of those inmates who had elected to remain behind. Prison staff members were instructed to have the doors of the occupied cells open by the time the correctional officers arrived.
Officers Acosta and Miller went to Grandberry's cell. Grandberry was ordered to lie prone on his cell floor for safety reasons. Officer Miller entered the cell through the open door and made a cursory inspection to ensure there were no weapons within Grandberry's reach. The officers then escorted Grandberry to the empty dayroom in A section and conducted an unclothed body search of the inmate. Grandberry was instructed to take off all his clothes and place them on a table so that Officer Acosta could conduct a thorough search. As he was searching the clothing, Officer Acosta noticed Grandberry's *261boxer shorts were particularly thick. Although visually they looked like one pair, Officer Acosta discovered they were actually two pairs sewn together, with a solid object nested between them in the front center. The object was a manufactured weapon-a four and one-half inch piece of plastic sharpened on one end, with a homemade sheath protecting the wearer *603from the sharp point. Officer Acosta had seen such weapons used to cause great bodily injury and even death.
Not wanting to agitate Grandberry or possibly cause a confrontation, Officer Acosta did not announce he had found a weapon. Instead, he placed the weapon and underwear in his pocket and allowed Grandberry to get dressed in his remaining clothing. He did not tell Officer Miller about the weapon directly, but instead looked at him in a certain way which indicated he had discovered something. Officer Miller testified he understood from Officer Acosta's actions that contraband had been found. The officers then handcuffed Grandberry and placed him in a holding cell until he could be processed into administrative segregation due to the weapons offense.
On November 5, 2015, at a classification hearing regarding his recent placement in administrative segregation, Grandberry reportedly stated: "I know I messed up and everything. I was stupid and being a bozo. I screwed up." The correctional case worker who recorded the proceedings and testified at trial remembered the comment because it was "not that common that an inmate will be so apologetic during committee." For the same reason, she included the quote in the report for the hearing-the classification review-which was entered into evidence at trial. A shorter document memorializing the hearing-the classification chrono-was also admitted into evidence. The classification chrono, which is provided to inmates for appeal purposes, did not contain the above-quoted implied admission. Instead, it simply stated: "[Subject] expressed his understanding of the basis of the [Institutional Classification Committee (ICC) ] action and agreed with the action."
In his defense at trial, Grandberry offered the testimony of three inmates whose description of the events paralleled statements they provided to an investigator in October 2016. Inmates Thorton and Dabney testified that, on the day of the raid, officers commanded Grandberry to strip out in his cell, taking his clothes through the tray slot in his closed cell door and searching them, including a pair of boxer shorts. The officers returned the clothes back through the slot and allowed Grandberry to put them back on before walking him into section A. Inmate Williams testified that, on the day of the raid, he saw Grandberry strip-searched in front of his cell in section A, but did not see the officers find a weapon.
Grandberry also testified on his own behalf, claiming that he was wearing only a single pair of boxer shorts when he was searched by correctional officers in October 2015 and that he did not have any weapon in his pants. He denied that the boxer shorts and weapon in evidence were his. He denied making the statement at the classification hearing that he "screwed up" and was "being a bozo" and stated he had not been provided a copy of the *604classification review which contained the statement. Grandberry claimed if he had seen that statement ascribed to him he would have appealed it, explaining that he was familiar with the process of filing an inmate appeal and had done so previously. He admitted that he received the classification chrono and agreed it was accurate.
On April 11, 2017, a jury found Grandberry guilty as charged. Grandberry admitted the strikes and prison prior, but the *262trial court subsequently allowed him to withdraw his admission to the 1996 strike due to an incorrect admonition as to its consequences. At sentencing on August 10, 2017, the trial court sentenced Grandberry to a total prison term of nine years, to run consecutively to his current sentence of 84 years to life. This timely appeal followed.
II. DISCUSSION
Grandberry contends that the trial court erred in instructing the jury that it could draw an adverse inference from his failure to deny or explain evidence against him, because there was no incriminating evidence at trial which he failed to explain or deny. He further argues the instruction violated his due process rights because it unfairly advantaged the prosecution. Assertions of instructional error in this context are reviewed de novo. ( People v. Vega (2015)
A. Claim of Forfeiture
We first address the Attorney General's contention that Grandberry's claims of error are forfeited because defense counsel failed to object to CALCRIM No. 361 at trial. Generally speaking, a "failure to object does not waive an instructional error on appeal if the instruction was an incorrect statement of law or the defendant's substantial rights were affected." ( Vega , supra , 236 Cal.App.4th at p. 495,
*605In doing so, we decline to adopt the Attorney General's position that, given the wording of CALCRIM No. 361, a defendant's substantial rights can never be violated because a jury can disregard the instruction where it is not responsive to the evidence at trial. It is true CALCRIM No. 361, by its terms, only comes into play if the jury finds evidence making it applicable-that is, if there is some incriminating evidence in the record that a testifying defendant has not explained or denied. Moreover, juries are generally instructed, in accordance with CALCRIM No. 200, to ignore any inapplicable instructions, as the jury was in this case: "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts." Although we have found one case adopting this approach to find a similar instruction nonprejudicial (see People v. Ballard (1991)
*263People v. Saddler (1979)
B. CALCRIM No. 361 Instruction
The challenged jury instruction, based on CALCRIM No. 361, stated as follows: "If the defendant failed in his testimony to explain or deny evidence against him, and if he could have reasonably been expected to do so based on 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."
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. ( Vega , supra , 236 Cal.App.4th at p. 496,
A CALCRIM No. 361 -based jury instruction "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." ( Cortez , supra , 63 Cal.4th at p. 117,
*264defendant ... 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." ( Saddler , at p. 682,
The Attorney General asserts the instruction was proper on this record because Grandberry failed to explain "why, if he did not confess, why his fellow inmates[ ] delayed a year before providing support for his story." Framed in this fashion, we agree with Grandberry that the Attorney General's argument does not provide the necessary evidentiary foundation for CALCRIM No. 361. Simply put, there is nothing in the record indicating Grandberry was aware of the reasons his fellow inmates failed to issue supporting statements earlier, and for Grandberry to have testified on such matters at trial would likely be deemed improper speculation. (See Lamer , supra , 110 Cal.App.4th at pp. 1470-1471,
*607The essence of the Attorney General's point, however, questioning why it took so long for Grandberry to mount a defense to the weapons charge, does have merit. The record shows that Grandberry failed to explain or deny an incriminating fact that was peculiarly within his knowledge to address-why he "agreed" to the classification committee's action placing him in administrative segregation if he had not actually been in possession of an inmate-manufactured weapon hidden in his boxer shorts. Grandberry expressly denied making the following statement memorialized in the classification review: "I know I messed up and everything. I was stupid and being a bozo. I screwed up." However, the classification chrono contained a substantially similar, less colorful description of Grandberry's position: "[Subject] expressed his understanding of the basis of the ICC action and agreed with the action." At trial, Grandberry acknowledged he was aware of this statement and testified it was accurate. Grandberry confirmed as well that he did not file an inmate appeal challenging the committee's decision, even though he had used the procedure before. We discern no real difference between these two statements-both reflect Grandberry's understanding and acceptance of the committee's action, namely to place him in a restrictive segregated setting as a result of the charged conduct. That Grandberry acceded to the action itself, and yet failed to explain why he would do so if he were innocent of the charges, forms the evidentiary basis for the CALCRIM No. 361 instruction.
In her closing argument, the prosecutor made precisely this point. She first noted: "You don't appeal, 'I was a bozo.' You don't appeal a statement. You appeal the program. I didn't want to have a change of program. I disagree with that change of program. Why are you moving me to a different section? I don't understand. No. I don't agree with it. That's what you appeal." Then, citing the statement common to both the classification review and the classification chrono, the prosecutor opined: "He's agreeing with the action because he was found with a weapon." Given this glaring omission in Grandberry's trial testimony, we conclude it was not error to instruct the jury with CALCRIM No. 361 in this case.
In doing so we reject Grandberry's assertion that his failure to explain or deny his acceptance of punishment for the weapons charge cannot be relied upon to justify *265use of CALCRIM No. 361 because he was never directly questioned about it during cross-examination.
According to Roehler , "[t]he Saddler majority was careful to state that assessment of the evidence adduced during " 'the scope of relevant cross-examination' " determines the applicability of the instruction in a given case." ( Roehler , supra , 167 Cal.App.3d at p. 392,
Saddler discusses a number of prior cases in which such an instruction was held to be properly given, one of which, People v. Perez (1967)
We conclude a correct reading of Saddler allows for use of CALCRIM No. 361 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. To the extent Roehler , Vega , and Mask hold to the contrary, we disagree with them.
As a final matter, we reject Grandberry's argument that instructing the jury with CALCRIM No. 361 violated his due process right to a fair trial because it impermissibly privileged the prosecution over the defense. In support of this assertion, Grandberry cites a number of cases which he claims establish the general proposition that the prosecution and the defense in a criminal matter must be allowed to compete on an equal basis. (See Holland v. Illinois (1990)
Grandberry overlooks that our high court has already rebuffed arguments challenging similar jury instructions on this basis. In People v. Mayberry (1975)
Other courts have upheld the constitutionality of CALCRIM No. 361 from similar challenge. In People v. Rodriguez (2009)
Central to the holdings in all of these cases is that a testifying defendant in a criminal matter is unique. This is not, as Grandberry urges, a situation where due process requires that the prosecution and the defense be on equal footing with respect to the selection of a jury, or the scope of permissible discovery, or the phrasing of jury instructions. Rather, CALCRIM No. 361 is a consequence of a defendant's status as the only testifying party in a criminal proceeding. We conclude the instruction did not violate defendant's due process right to a fair trial.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR:
Margulies, Acting P. J.
Banke, J.
All statutory references are to the Penal Code unless otherwise specified.
After this potential failure to explain or deny was raised for the first time at oral argument, Grandberry's appellate counsel requested and was granted the opportunity to file supplemental briefing on this and other examples raised by the Attorney General, which he did.
The Bench Notes for CALCRIM No. 361 similarly cite to Saddler for the proposition that the instruction can only be given as a matter of law when the defendant is asked a question calling for an explanation or denial of incriminating evidence, the defendant knows the facts necessary to answer that question, and the defendant fails to deny or explain the incriminating evidence when answering the question. (Bench Notes to CALCRIM No. 361 (2019) p. 130.) As we have discussed, Saddler is not authority for this point. Nor are any of the other cases cited in the Bench Notes as support for this view. (See People v. Marsh (1985)