People v. Murrillo CA3

Filed 6/12/23 P. v. Murrillo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C095036

Plaintiff and Respondent, (Super. Ct. No. 20FE014912)

v.

MARCO ANTONIO MURRILLO,

Defendant and Appellant.

A jury found defendant Marco Antonio Murillo guilty of numerous crimes including assault with a deadly weapon. After the trial court denied his motion for a new trial, the court sentenced defendant to an aggregate term of five years eight months in state prison. On appeal, defendant contends the prosecutor committed misconduct by attempting to elicit inadmissible testimony from the victim Y. when she testified at trial. The trial court, he argues, thus erred in denying his motion for a mistrial and motion for a new trial. We disagree and affirm the judgment.

1

BACKGROUND The People charged defendant with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)), making criminal threats (§ 422), grossly negligent discharge of a firearm (§ 246.3), inflicting corporal injury on a person with whom defendant was in or had previously been in a dating relationship (§ 273.5, subd. (a)), and child endangerment under circumstances likely to cause great bodily injury or death (§ 273a, subd. (a)). The People further alleged defendant personally used a firearm in the commission of the crime (§ 12022.5, subd. (a)). Defendant pleaded not guilty. At trial, while the prosecutor was questioning the victim Y., the following exchange took place: “Is this the first time the defendant has struck you? “[Defense Counsel]: Relevance. “THE COURT: I’m sorry? “[Defense Counsel]: Relevance. “THE COURT: Approach please.” After an unreported bench conference, the prosecutor continued their examination of the victim without returning to the question of prior acts of violence. Later, as the court was set to break for lunch, while the jury was out of the courtroom, defense counsel moved for a mistrial. Defense counsel argued the prosecutor’s inquiry into prior acts of violence was prejudicial. Counsel noted, the witness answered the prosecutor’s question in the affirmative, and her answer was left in the record. That too, he argued, was prejudicial. The court denied the motion. The jury found defendant guilty on each charge except child endangerment. The jury also found true the allegation that defendant personally used a firearm during the commission of the assault. Before sentencing, defendant filed a motion for a new trial. The court denied the motion: “The standard for reviewing a new trial motion is if there’s substantial evidence to sustain the verdict. Clearly the question that has given rise to all