Filed 6/29/26 P. v. Lopez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B340402
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA509496)
v.

ANTHONY GUTIERREZ LOPEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Kevin Stennis, Judge. Affirmed.
G. Martin Velez, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jonathan J. Kline and Herbert S. Tetef,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
 On September 26, 2022, Johan Contreras Bautista and a
juvenile we identify as E.J. challenged defendant Anthony
Gutierrez Lopez and his younger brother Ricardo to fight.1
Almost immediately after the fight began, Gutierrez Lopez
removed a gun from his waistband and shot and killed the
unarmed Bautista. E.J., who was also unarmed, was shot and
wounded but survived. Gutierrez Lopez then attempted to flee to
Mexico and was apprehended at the border.
The People charged Gutierrez Lopez with the premeditated
murder of Bautista (Pen. Code,2 § 187, subd. (a); count 1) and the
attempted premeditated murder of E.J. (§§ 187, subd. (a), 664;
count 2). As to both counts, it was alleged that Gutierrez Lopez
personally used a firearm (§ 12022.5, subd. (a)). As to count 2, it
was further alleged that Gutierrez Lopez personally inflicted
great bodily injury (§ 12022.7, subd. (a)).
A jury found Gutierrez Lopez not guilty of murder and
attempted murder; it convicted him of the lesser included
offenses of voluntary manslaughter (§ 192, subd. (a)) and
attempted voluntary manslaughter (§§ 192, subd. (a), 664). The
jury found all the firearm and great bodily injury allegations to
be true. The trial court sentenced Gutierrez Lopez to seven years
in state prison.
Gutierrez Lopez claims we should reverse his conviction
because the trial court erroneously excluded various categories of
defense evidence from his trial, erroneously indicated it would

1 Because he shares the same surname as the defendant,
for ease of reference we refer to Ricardo by his first name. We
intend no disrespect.
2 Unspecified statutory references are to the Penal Code.

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permit the prosecution to impeach one of his proposed character
witnesses with certain evidence if that witness testified, and gave
a jury instruction on mutual combat that was not supported by
substantial evidence. We reject these challenges and affirm.
FACTUAL BACKGROUND
A. Prosecution Evidence
A surveillance video camera focused on the intersection of
Hoover and 66th Streets in the City of Los Angeles captured the
following. On September 26, 2022, around 11:30 a.m., Bautista
and E.J. were standing on one of the intersection’s street corners
near Bautista’s car when Guttierez Lopez and Ricardo
approached them. The four men moved to the middle of the
street where there was a verbal altercation. Bautista and E.J.
then returned to Bautista’s car and got inside it. Gutierrez Lopez
and Ricardo approached the driver’s side of Bautista’s car. After
a period of further verbal exchanges, Bautista and E.J. got out of
the car and took off their shirts.
Eventually, all four men again moved to the middle of the
street. Neither Bautista nor E.J. had a weapon. Ricardo threw a
punch at Bautista, precipitating a fight. Almost immediately
after the fight began, Gutierrez Lopez removed a gun from his
waistband, pointed it towards Bautista, and fired. Gutierrez
Lopez then pointed the gun at E.J. and shot him. Bautista began
running away; E.J. fell to the ground. Gutierrez Lopez chased
Bautista while holding the gun in his outstretched arm before
both men left the area covered by the surveillance camera.
Bautista’s cellphone recorded portions of the encounter.
The audio of those recordings includes challenges to fight,
multiple uses of the word “Crip,” and three audible gunshots.

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 Bautista was shot twice, once in the chest and once in the
hand, and died at the scene. An autopsy showed that he died
from the chest wound. E.J. suffered gunshot wounds to his left
arm and hip. He was hospitalized and discharged two days later.
Police arrested Gutierrez Lopez in the days after the
shooting following his detention by United States Customs and
Border Protection as he attempted to cross into Mexico.
Bautista’s father testified that Bautista and Gutierrez
Lopez had known each other since elementary school. In the
weeks before the shooting, Gutierrez Lopez told Bautista’s father
that Bautista had stolen a gun from Gutierrez Lopez. Bautista
denied doing so, but his father agreed to pay Guiterrez Lopez
$600 for the gun in three $200 installments. Bautista’s father
had made one or two of the payments before his son was killed.
B. Defense Evidence
1. Gutierrez Lopez’s Testimony
Gutierrez Lopez testified in his own defense. He said that
Bautista stole a gun from him a month or two before the
shooting. Gutierrez Lopez told Bautista’s parents about it and
they agreed to make payments for the gun. Bautista was upset
that Gutierrez Lopez told Bautista’s parents about the theft. To
replace the stolen gun, Gutierrez Lopez bought another one “on
the streets.”
On the day of the shooting, Gutierrez Lopez and Ricardo
were out on the street when Bautista and E.J. waved guns
through the window of their car and pointed them at Gutierrez
Lopez. Bautista’s gun looked like the one that he had stolen from
Gutierrez Lopez. Bautista and E.J. (who Gutierrez Lopez had
never seen before) got out of their car and asked Gutierrez Lopez
and his brother where they were from. Gutierrez Lopez

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understood during the exchange that Bautista had been “put on
the Crips,” meaning Bautista had to prove himself and put fear
into people. Gutierrez Lopez said he was not with (or “from”) any
gang. The video showed Gutierrez Lopez walking away from
Bautista and E.J. at several points only to return to them;
Gutierrez Lopez said he did not continue walking away because
he was afraid that Bautista and E.J. would follow and continue
harassing him. Gutierrez Lopez shot Bautista and E.J. because
he was afraid they otherwise would have killed him and Ricardo.
After the shooting, Gutierrez Lopez was fearful Bautista’s
gang would kill him. Gutierrez Lopez tried to go to Mexico, but
the border patrol stopped him and he was arrested. When
interviewed by detectives, Gutierrez Lopez never mentioned that
Bautista and E.J. had pointed guns at him; an LAPD detective
later testified Gutierrez Lopez also did not mention during the
interview seeing guns or objects that looked like guns. Gutierrez
Lopez falsely told detectives that he did not know where the gun
he used to shoot the victims was when he knew his brother had
thrown it in the ocean. He also lied when he told detectives there
were no issues between him and Bautista.
Gutierrez Lopez authenticated a photograph of him making
an “H” with his left hand and giving the middle finger with his
right to the camera with the letters “HK” superimposed on the
picture. He testified it showed he was “going against [the Hoover
gang,] like dissing them in a way.” An LAPD officer assigned to
gang enforcement later testified that the area where the shooting
took place was the border between the territories of the Menlo
Park and Hoover gangs, that “HK” stood for “Hoover Killer,” and
that Gutierrez Lopez’s hand signals signified disrespect for the
Hoover gang.

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 2. Ricardo’s Testimony
According to Ricardo, he and Gutierrez Lopez used to “hang
out” with Bautista. That stopped after Bautista stole the gun,
and Bautista held a grudge against Gutierrez Lopez for telling
Bautista’s father about the stolen gun.
On the day of the shooting, Ricardo and his brother were
walking to a grocery store when Bautista and E.J. drove up,
almost hit them with their car, and then made a U-turn. Ricardo
had never seen E.J. before.
Ricardo saw Bautista and E.J. pointing something at
Gutierrez Lopez that looked like a gun. Bautista and E.J. asked
Ricardo and Gutierrez Lopez what gang they were from, and they
replied that they were not from any gang. E.J. told them that he
was a Crip and that Bautista had been “put on” the Crips;
Ricardo did not believe that Bautista had in fact been “put on”
the Crips.
Ricardo and Gutierrez Lopez continued walking, but
Bautista and E.J. kept asking what gang they were from.
Bautista and E.J. then asked what Ricardo and Guttierez Lopez
had in their pockets, as if they were going to rob them. When
Ricardo and Gutierrez Lopez refused to let their pockets be
searched, Bautista and E.J. tried to start a fight. Ricardo hit
Bautista because he thought Bautista and E.J. would have kept
following if he and his brother had tried to walk away. Ricardo
knew that his brother had a gun when he got into the fight; he
also believed Bautista and E.J. had guns.
After the shootings, Ricardo and Gutierrez Lopez ran away
because they were scared. Their sister drove them to the beach,
where Ricardo threw the gun into the ocean.

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 3. Other Testimony
Gutierrez Lopez’s mother, his soccer coach, three of his
high school teachers, and a high school counselor all testified as
character witnesses.3 They testified Gutierrez Lopez was
peaceful and that they had not seen anything to suggest he was
in a gang.
Dr. Scott Fraser, an expert in neuropsychology, testified
about the fight-or-flight response. Based on his review of the
surveillance video, Dr. Fraser opined that it was the type of
situation that could evoke the fight-or-flight response.
The parties stipulated that E.J. told a detective he was
from the Menlo Crips gang. Greg Estevene testified as a gang
expert for the defense regarding a portion of the video taken by
Bautista’s cell phone where E.J. says, “I want my demo shit”
while approaching Gutierrez Lopez and Ricardo. Estevene
opined that, in the context of a gang “hit up,” that statement
referred to a video of violence that can be published on social
media.
DISCUSSION
A. Gutierrez Lopez’s Evidentiary Challenges Do Not
Warrant Reversal
Gutierrez Lopez contends that we should reverse because
the trial court abused its discretion in excluding evidence of his
character for honesty, the dangerousness of the neighborhood
where the shooting occurred and of the Menlo Crips gang, and
that the two victims had drugs in their system at the time of the

3 Gutierrez Lopez had graduated from high school
approximately two years before the shooting.

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shooting. He also contends the court erred by ruling his father
could be cross-examined about a criminal charge pending against
him related to the shooting if he testified.
1. Standard of Review
A trial court has broad discretion to determine the
relevance of evidence. (People v. Case (2018) 5 Cal.5th 1, 33.) We
will not disturb the exercise of that discretion unless it was
arbitrary, capricious or patently absurd and resulted in a
manifest miscarriage of justice. (Id. at pp. 33-34.) In addition,
we may not reverse a jury’s verdict “by reason of the erroneous
exclusion of evidence unless . . . it appears of record that” “[t]he
substance, purpose, and relevance of the excluded evidence was
made known to the court by the questions asked, an offer of proof,
or by any other means.” (Evid. Code, § 354, subd. (a).)
2. Character Evidence
Defendant’s soccer coach testified without objection that
Gutierrez Lopez was a peaceful person. Before another question
was asked, the court called counsel to sidebar and told defense
counsel, “[Y]ou can’t ask about honesty. Because on cross, he was
referred to as lying over and over.” Defense counsel responded,
“Okay.”
On appeal, Gutierrez Lopez claims the court erred in
excluding testimony from the soccer coach regarding honesty.
This claim is forfeited. First, it is not clear whether defense
counsel even intended to ask the soccer coach about Gutierrez
Lopez’s honesty. One of Gutierrez Lopez’s teachers and his
mother had already testified as character witnesses; neither was
asked about his character for honesty. Nor did the court’s
statement come in reaction to any proposed question or stated
potential area of inquiry. Based on the record before us, it

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appears to have been entirely sua sponte, and defense counsel did
not object but instead agreed with the court.
Even if we assume counsel did intend to ask about
Gutierrez Lopez’s character for honesty and was prevented from
doing so, we have no idea what the soccer coach would have said
about that topic because “[t]he substance, purpose, and relevance
of the excluded evidence” was not “made known to the court by
the questions asked, an offer of proof, or by any other means.”
(Evid. Code, § 354, subd. (a).) Because we lack an adequate
record to evaluate the claimed error or its potential impact on the
verdict, the claim is forfeited. (People v. Ramos (1997) 15 Cal.4th
1133, 1178 [a defendant who “did not make an offer of proof as to
the substance of the anticipated testimony . . . fail[s] to preserve
the issue” for appellate review].)
3. Dangerousness of the Neighborhood
Prior to trial, defense counsel sought to introduce evidence
of “dangerousness in the neighborhood and fear for safety in the
neighborhood” where the shootings occurred, arguing it was
relevant to explain why Gutierrez Lopez was armed. The trial
court ruled that such evidence was irrelevant. Defense counsel
then provided more specificity about what he intended to elicit on
this topic, namely testimony from Gutierrez Lopez’s girlfriend
about a shooting in her family’s home in which one of her
brothers shot and killed another brother. Counsel explained his
belief that the evidence was relevant to Gutierrez Lopez’s
“concern generally about dangerousness and particularly fatal
shootings in the neighborhood.” The trial court again ruled that
the evidence was irrelevant.
Gutierrez Lopez argues the trial court should have
admitted this evidence because it explained why he possessed a

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firearm at the time of the shooting. The trial court did not abuse
its discretion in finding evidence about the intra-family shooting
at the girlfriend’s home irrelevant. That evidence had no
relevance to Gutierrez Lopez’s claim that he shot Bautista and
E.J. in self-defense or otherwise acted reasonably during the
encounter with them. To the extent Gutierrez Lopez sought to
introduce any other evidence about the dangerousness of the
neighborhood beyond the intra-family shooting, he identifies no
proffer or other indication in the record of what that evidence
might have been. Because we lack any basis to evaluate the
claim, it is forfeited. (People v. Ramos, supra, 15 Cal.4th at
p. 1178.)
4. Dangerousness of Menlo Crips Gang
Guiterrez Lopez contends that the trial court erroneously
excluded evidence that the Menlo Crips gang was dangerous.
After defendant’s gang expert testified that the Menlo Crips was
a criminal street gang, the following exchange occurred:
“Q [Defense counsel]: Are they dangerous?
“A Yes.
“[The prosecutor]: I’m going to object to the form of the
question.
“The court: Sustained.
“[The prosecutor]: Move to strike.
“The court: Stricken.”
Defense counsel did not seek to rephrase and re-ask the question,
and instead moved to another topic.
Contrary to Gutierrez Lopez’s claim, the court did not
exclude evidence that the Menlo Crips gang was dangerous. It
sustained an objection to the form of a question seeking to elicit
such information, not any objection to the relevance of that

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information. Defense counsel did not attempt to rephrase the
question, or if he thought the court was somehow suggesting the
evidence was irrelevant, to explain the relevance and seek a
ruling on admissibility. The claim is thus forfeited. (People v.
Elder (2017) 11 Cal.App.5th 123, 134 [failure to obtain ruling on
evidentiary matter forfeits issue on appeal].)
5. Toxicology Results
Guiterrez Lopez contends that the trial court abused its
discretion by excluding evidence that Bautista had cannabis, and
that E.J. had cannabis and opioids, in their systems at the time
of the shooting. Defense counsel argued this evidence was
relevant because, according to the defense gang expert, “it’s very
common for active gang members to be intoxicated when they are
doing the gang business. And when I say intoxicated, I mean not
alcohol necessarily but chemicals in the blood stream or in the
brain, like cann[a]bis or opioids. That actually makes them more
dangerous because it inhibits their decision making process.”
The court excluded the proffered evidence.
Gutierrez Lopez did not present any evidence, either when
he testified or through other means, that he believed Bautista
and E.J. were under the influence of drugs at the time of the
encounter. The toxicology evidence was therefore irrelevant.
(See, e.g., People v. Tafoya (2007) 42 Cal.4th 147, 165 [evidence
purporting to indicate victim’s dangerousness “was relevant to
[the] defendant’s claim of self-defense only if [the] defendant
knew of” that fact and was afraid as a result]; People v. Hillhouse
(2002) 27 Cal.4th 469, 496 [“the court is not required to admit
evidence, such as cocaine or marijuana use, ‘that merely makes
the victim of a crime look bad’ ”].)

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 People v. Wright (1985) 39 Cal.3d 576, on which Gutierrez
Lopez relies, is not to the contrary. In that case, the trial court
erred in excluding evidence that a homicide victim had heroin in
his system within 24 hours of his death. (Id. at pp. 582-586.)
The defendant in Wright testified that the victim threatened him,
was acting irrationally, and might have been under the influence
of some drug. (Id. at pp. 581-582.) The Supreme Court found the
excluded evidence would have supported the defense theory that
the defendant shot in self-defense based on his perception of the
victim’s irrational behavior, and also would have impeached the
the prosecution’s primary witness, the victim’s wife, who had
testified that the victim had not used narcotics in the 24 hours
prior to his death. (Id. at p. 584.) Here, Gutierrez Lopez points
to no evidence that he believed the victims’ behavior might have
been caused by drug use or that he shot the victims in self-
defense in response to what appeared to be irrational drug-
induced behavior. Nor was the evidence of the victims’ drug
toxicology relevant for impeachment purposes of some other
witness.
6. Cross-examination of Gutierrez Lopez’s Father
In the same information filed against Gutierrez Lopez, the
People charged his father with being an attempted accessory
after the fact for helping his son try to cross into Mexico after the
shootings. At trial, in addition to the character witnesses that
did testify, Gutierrez Lopez intended to call his father to testify
that Gutierrez Lopez was a peaceful person. The prosecutor
indicated that if the father testified, the prosecutor would seek to
cross-examine the father about the facts underlying his alleged
help in attempting Gutierrez Lopez escape. The trial court

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ultimately indicated it would permit such cross-examination.
The father never testified at trial.
Gutierrez Lopez contends that the court erred in permitting
this potential cross-examination. That claim is forfeited. To
preserve a claim of error regarding potential impeachment
evidence, the witness at issue must testify at trial and be
impeached with the evidence at issue. (See People v. Collins
(1986) 42 Cal.3d 378.) This is because: (1) “an appellate court
cannot review [the trial’s court’s] balancing process [concerning
the probative value of the impeachment against its prejudicial
effect] unless the record discloses ‘the precise nature of the
[witness]’s testimony’ ” (id. at p. 384); (2) “when the [witness]
does not testify, the reviewing court . . . has no way of knowing
whether the prosecution would in fact have used the [evidence in
question] to impeach” (ibid.); and (3) “the reviewing court cannot
intelligently weigh the prejudicial effect of that error if the
[witness] did not testify” (ibid.). Because Gutierrez Lopez’s
father did not testify, we do not know what his father would have
said, whether his father would have been impeached and with
what specific evidence, and have no basis to weigh the prejudicial
effect of any alleged error in permitting the impeachment.
B. The Court Did Not Err in Giving a Jury Instruction
on Mutual Combat
Gutierrez Lopez argues the court erred by instructing the
jury on self-defense involving mutual combat. Although defense
counsel did not object to the instruction ultimately given to the
jury, “[i]t is error to give an instruction which, while correctly
stating a principle of law, has no application to the facts of the
case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) We
accordingly review this claim of error even though no objection

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was made before the trial court. (§ 1259 [“The appellate court
may . . . review any instruction given, . . . even though no
objection was made thereto in the lower court, if the substantial
rights of the defendant were affected thereby”]; People v. Delgado
(2017) 2 Cal.5th 544, 572, fn. 15.)
The trial court instructed the jury using CALCRIM
No. 3471 as follows: “A person who engages in mutual combat
has a right to self-defense only if: [¶] 1. He actually and in good
faith tried to stop fighting; [¶] 2. He indicated, by word or by
conduct, to his opponent, in a way that a reasonable person would
understand, that he wanted to stop fighting and that he had
stopped fighting; [¶] AND [¶] 3. He gave his opponent a chance to
stop fighting. [¶] If the defendant meets these requirements, he
then had a right to self-defense if the opponent continued to fight.
[¶] A fight is mutual combat when it began or continued by
mutual consent or agreement. That agreement may be expressly
stated or implied and must occur before the claim to self[-]defense
arose.”
Guiterrez claims this instruction had no application to his
case because there was no mutual combat. Instead, “Bautista
and E.J. remained the aggressors, repeatedly challenging
[Guiterrez Lopez] to fight.”
When determining whether substantial evidence supports a
jury instruction, we must “view the evidence most favorably to
the judgment presuming the existence of every fact that
reasonably may be deduced from the record in support of the
judgment.” (People v. Jantz (2006) 137 Cal.App.4th 1283, 1290.)
Bautista and E.J. did challenge Gutierrez Lopez and Ricardo to
fight. But after these challenges, Ricardo threw the first punch
that in fact started the fight, and Gutierrez Lopez joined in

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almost immediately. This was evidence from which the jury
could have concluded that the fight started by mutual consent or
agreement. Thus, the trial court did not err in giving the mutual
combat instruction.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

M. KIM, J.

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