What is the test for giving a jury instructions where a defendant has no memory of the events leading up to the murder of a cellmate?

An unexplained memory gap may justify giving CALCRIM No. 361. (See People v. Sanchez (1994) 24 Cal.App.4th 1012, 1030 [instruction was properly given where defendant gave detailed testimony about events preceding murder, but claimed to have no memory of inculpatory events].) In any event, giving the instruction was hardly prejudicial. CALCRIM No. 361 leaves it to the jury to "decide the meaning and importance" of any failure to explain incriminating evidence. In addition, the jury was instructed with CALCRIM No. 200 that some instructions might not apply, depending on its findings of fact. (See People v. Vega, supra, 236 Cal.App.4th at pp. 502-503.) In closing, the prosecutor used appellant's changing recollections to argue that appellant had made a conscious plan to avoid responsibility on the day of Le's death, and that after he realized denying his presence in the cell was not going to work, appellant had come up with self-defense as an excuse. The prosecutor urged the jury to reject self-defense as a ploy. Since the jury convicted defendant of voluntary manslaughter on a theory of imperfect self-defense, it must have rejected the inference the prosecutor urged it to draw.

Appellant argues the court abused its discretion in denying his motion to strike his prior strike conviction in the interest of justice. (Pen. Code, 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531.)