People v. Muriel CA4/3

Filed 1/20/15 P. v. Muriel CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049226

v. (Super. Ct. No. 06WF3139)

ROBERT ISMAEL MURIEL, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION Defendant Robert Muriel appeals from a jury verdict finding him guilty of attempted murder, aggravated assault, shooting at an inhabited dwelling, and street terrorism. He has one complaint to make about his trial: The court abused the discretion 1 afforded to it under Evidence Code section 352 by allowing one of the witnesses to testify about his fear of retaliation for his testimony and the facts underlying this fear. According to Muriel, this evidence was unduly prejudicial and resulted in a guilty verdict, which he would not otherwise have suffered. We affirm. The trial court properly limited the witness’ statements regarding his fear of retaliation by immediately instructing the jury that it was to consider this testimony only as it bore on the witness’ credibility and for no other purpose. We assume that the jury followed this instruction. Moreover, even if we assume the jury disregarded the court’s instruction, Muriel has not explained how this testimony could have affected the verdict so that the outcome of the trial would have been different. 2 FACTS On September 10, 2006, 14-year-old Jesse Niutapuai was standing in the front yard of his house in Westminster with his cat when a group of young Hispanic 3 males walked by. One of them asked Jesse where he was from. Unfamiliar with the implication of the question, Jesse laughed. The group began angrily yelling “West Trece,” the name of a Hispanic gang in Westminster. At this point, Jesse realized trouble was brewing, so he went inside the house to summon his family. Apparently unbeknownst to the gang members, Jesse was the youngest, and at 190 pounds the smallest, of five Samoan brothers, all of whom eventually came out of the house to deal