Filed 5/17/23 P. v. Lopez CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ARTURO LOPEZ,

Defendant and Appellant.

 B318338

 (Los Angeles County

 Super. Ct. No. MA062878)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Kathleen Blanchard, Judge. Affirmed.

Alex Green, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Scott A. Taryle, Supervising Deputy 

Attorney General, and David A. Voet, Deputy Attorney General, 

for Plaintiff and Respondent.

_____________________________
2

A jury convicted Arturo Lopez of second degree murder and 

found true the special firearm-use allegations. On appeal Lopez 

contends defense counsel provided constitutionally ineffective 

assistance by failing to object to certain testimony. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The First Conviction and Reversal of the Judgment

In 2016 a jury convicted Lopez of second degree murder, 

conspiracy to destroy evidence, offering false evidence and three 

counts of possession of a firearm by a felon. On appeal we 

reversed the convictions for murder based on instructional error 

and for offering false evidence for insufficient evidence. The 

convictions on the remaining four charges were affirmed. 

(See People v. Lopez (Nov. 13, 2018, B277127) [nonpub. opn.].)

2. The Third Amended Information

Following issuance of the remittitur on January 14, 2019, 

Lopez was recharged in a third amended information with one 

count of murder (Pen. Code, § 187, subd. (a)).

1 The third 

amended information included special firearm-use enhancement 

allegations pursuant to section 12022.53, subdivisions (b), (c) 

and (d).

3. The Evidence at Trial

On the afternoon of February 23, 2014 Stephen Finson left 

his home in Lancaster to ride his all-terrain cycle (ATC) in the 

desert. When he did not return home that evening, his wife 

reported him missing. Finson’s body was found the next morning 

in the desert. He had been shot in the back of the head through 

his helmet. The autopsy showed the bullet had entered the back 

1 Statutory references are to this code unless otherwise 

stated.
3

of the helmet, travelled through Finson’s head and then through 

the helmet’s right cheek pad. No bullet fragments were found in 

the wound, and no bullets or shell casings were found at or near 

the crime scene.

Los Angeles County Sheriff’s deputies were able to trace 

the path of Finson’s ATC and determined Finson had been 

heading southwest on a defined trail and then made an abrupt 

turn to the north into the open desert. Based on the depth of the 

tire tracks, deputies concluded Finson had been travelling at a 

high rate of speed when he turned. Finson’s body was found 

approximately 100 yards north of the turn, and the ATC was 

found another 30 feet north of Finson’s body.

Marco Iezza, a firearms examiner in the firearms 

identification section of the sheriff’s department crime laboratory, 

testified regarding his examination of Finson’s helmet. Iezza was 

unable to determine the precise caliber of the bullet that killed 

Finson; but based on the size of the entrance and exit paths in 

the helmet, Iezza opined it was a medium or large caliber bullet, 

such as a .30-caliber or .40-caliber. When given the hypothetical 

that the fatal shot was fired from at least 100 yards away, Iezza 

testified the bullet must have been fired from a rifle, not a 

handgun, to have the high velocity needed to pierce the helmet 

and go through Finson’s head without leaving bullet fragments. 

However, Iezza stated, if a handgun had been used, the shot 

must have been fired from within 25 yards.

Two witnesses testified that, prior to his arrest, Lopez 

made incriminating statements indicating he had shot Finson. 

One of those individuals informed the Finson family, which led to 

the investigation of Lopez as a suspect. Upon executing a search 

warrant at Lopez’s home, sheriff’s deputies found a .22-caliber 
4

rifle and a .22-caliber revolver buried at the edge of the property. 

They also observed a large number of spent rifle cartridges on the 

ground in the backyard and in burn barrels, including many 

.30-30-caliber rifle cartridges. While some of the spent cartridges

appeared to have been outside in the elements for an extended

time, the .30-30-caliber casings looked as if they had been

discarded more recently. 

The preliminary hearing testimony of Lopez’s friend 

Gerardo Amaya was read to the jury due to Amaya’s 

unavailability at trial. Amaya testified that on the day of 

Finson’s murder Amaya and Lopez were driving in Lancaster, 

heading west on a road to the south of where Finson’s body was 

later found. Lopez, who was driving, stopped the car and told 

Amaya he wanted to test fire a new handgun. Lopez got out of 

the car and went to the rear of the car. Amaya remained in the 

passenger seat. Amaya heard two gunshots a few seconds apart. 

Amaya stated Lopez had fired the gun to the north, into the 

desert. When Lopez returned to the driver’s seat, he was holding 

a semiautomatic handgun, which he placed on the center console. 

Christine Banghart,2 Lopez’s girlfriend at the time of 

Finson’s death, testified Lopez owned a .22-caliber rifle with a 

scope and a .22-caliber handgun.

Lopez was interviewed by sheriff’s deputies in April 2014 

following his arrest. Recordings of portions of the interview were 

played for the jury. Lopez said he had owned a .30-30-caliber 

rifle but had destroyed it six months earlier because the pin was 

2 By the time of the second trial Banghart had changed her 

name to Christine Mangone. However, for the sake of 

consistency with our prior opinion and references in the record, 

we refer to her by her former name.
5

misfiring. He used a grinder to cut it into pieces then took the 

metal pieces to a recycling center. He burned the wooden parts. 

Lopez did not testify in his own defense. He presented the 

testimony of an independent firearm examiner, William Moore, 

who examined Finson’s helmet and conducted various tests to 

determine what type of weapon could have killed Finson. Moore 

concluded that, if Finson had been shot from 200 yards away, 

Finson was likely killed by a .357 magnum bullet fired from a 

handgun. However, it was also possible Finson’s killer used a 

.38-caliber rifle or .357-caliber rifle. Moore did not believe a 

.30-caliber bullet could have created the damage to Finson’s 

helmet. He also stated it would take some level of proficiency to 

shoot a moving target from 100 yards with a .30-30-caliber rifle.

During her closing argument the prosecutor told the jury 

Lopez stopped his car along the roadway south of where Finson 

was riding his ATC and deliberately shot at Finson, likely with 

the .30-30-caliber rifle that he later destroyed. Defense counsel 

argued that, if the jury believed Lopez shot Finson, the evidence 

supported a verdict of involuntary manslaughter rather than 

murder, because Finson had been killed accidentally while Lopez 

committed the misdemeanor of shooting a firearm from a public 

road or shooting a firearm in a grossly negligent manner.

4. The Verdict and Sentence

The jury convicted Lopez of second degree murder and 

found the special firearm-use enhancement allegations true. The 

court sentenced him to an aggregate indeterminate state prison

term of 45 years to life.
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DISCUSSION

1. Governing Law and Standard of Review

To prevail on his claim of ineffective assistance of counsel, 

Lopez must demonstrate his counsel’s performance fell below an 

objective standard of reasonableness under prevailing 

professional norms and there exists a “reasonable probability 

that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” (Strickland v. 

Washington (1984) 466 U.S. 668, 694; accord, People v. Centeno

(2014) 60 Cal.4th 659, 674, 676.)

When “there was no sound legal basis for objection, 

counsel’s failure to object to the admission of the evidence cannot 

establish ineffective assistance.” (People v. Cudjo (1993) 

6 Cal.4th 585, 616.) “And, even when there was a basis for 

objection, ‘“[w]hether to object to inadmissible evidence is a 

tactical decision; because trial counsel’s tactical decisions are 

accorded substantial deference [citations], failure to object seldom 

establishes counsel’s incompetence.” [Citation.] “In order to 

prevail on [an ineffective assistance of counsel] claim on direct 

appeal, the record must affirmatively disclose the lack of a 

rational tactical purpose for the challenged act or omission.”’” 

(People v. Majors (1998) 18 Cal.4th 385, 403; see also People v. 

Centeno, supra, 60 Cal.4th at pp. 674-675 [“‘[u]nless a defendant 

establishes the contrary, we shall presume that “counsel’s 

performance fell within the wide range of professional 

competence and that counsel’s actions and inactions can be 

explained as a matter of sound trial strategy”’”].)

2. Testimony Regarding Lopez’s Firearm Use

On direct examination the prosecutor asked Banghart how 

often she had seen Lopez shoot guns on his property. Banghart 
7

responded that Lopez would shoot daily as long as he had 

ammunition. He would shoot at “random stuff in the yard” or at 

birds. The prosecutor clarified, “Defendant wouldn’t just shoot in 

the air; he would be targeting something, correct?” Banghart 

replied that was correct. During cross-examination defense 

counsel asked Banghart whether she had seen Lopez shoot his

.22-caliber rifle in the backyard, to which she responded she had. 

Counsel then asked whether that was “a common occurrence.” 

Banghart replied it was. Defense counsel then inquired about 

Lopez’s targets and where he stood while shooting. 

Additional testimony regarding Lopez’s gun use was 

presented through the testimony of Vanessa Burkes, Lopez’s 

former girlfriend. Due to her unavailability at trial, Burkes’s 

preliminary hearing testimony was read to the jury. On direct 

examination Burkes testified she knew Lopez owned guns and 

had seen him with guns. On cross-examination defense counsel 

asked how often Burkes had seen Lopez with guns. Burkes 

replied, “When we lived together, he would be outside all the time 

shooting rabbits and squirrels. It wasn’t anything unusual.” She 

said Lopez shot rabbits and squirrels “just about every day.” 

During redirect Burkes stated that on more than one 

occasion Lopez hid behind a door with a shotgun when she came 

home and shot the gun in the house to scare her. She explained, 

“Where we lived it was like a barn, so it didn’t matter if he shot 

through the ceiling or not.” Burkes also recounted an incident 

approximately five years earlier when she and Lopez were 

fighting and she ran out of the house. As she ran down the road, 

Lopez shot at her twice with his .22-caliber rifle. Burkes heard 

the bullets go by her head, but she believed Lopez was trying to 

scare her rather than hurt her.
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3. Lopez Has Not Demonstrated His Trial Counsel Was 

Constitutionally Ineffective

Lopez argues Banghart’s and Burkes’s testimony regarding 

his firearm use should not have been admitted because it was 

irrelevant, unfairly prejudicial and improper propensity evidence. 

Lopez acknowledges his counsel failed to object to the testimony 

and, therefore, frames the issue in terms of ineffective assistance 

of counsel.

Contrary to Lopez’s contention, any objection to the 

testimony based on relevance would likely have been overruled. 

The prosecution’s theory of the case was that Lopez purposefully 

shot Finson, a moving target, from at least 100 yards away. As 

defendant’s own expert acknowledged, such a shot would require 

proficiency with firearms. Accordingly, Lopez’s almost daily 

target practice, during which he often shot at small animals, was 

relevant to his familiarity with firearms and his ability to hit a 

moving target from a distance. Lopez’s experience with firearms 

was likewise relevant to refute the defense argument that the 

shooting was accidental. The testimony was also relevant to 

undermine Amaya’s testimony that Lopez had stopped along the 

road to test fire a handgun. Given the evidence that Lopez often 

shot guns on his property—even multiple times inside his home—

there was no need for him to test fire a gun from the side of the 

road. As the prosecutor stated during her closing argument, “If 

he wanted to simply test fire a new pistol, he could have done it 

at his home at any point in time.” 

Lopez’s argument the testimony was inadmissible due to 

undue prejudice also fails. To be sure, evidence he had shot at 

Burkes at least once and had often shot at small animals 

damaged his defense, but it was not overly prejudicial in the 
9

sense contemplated by Evidence Code, section 352. “‘“The 

‘prejudice’ referred to in Evidence Code section 352 applies to 

evidence which uniquely tends to evoke an emotional bias against

. . . [one party] as an individual and which has very little effect on 

the issues.”’” (People v. Garceau (1993) 6 Cal.4th 140, 178.) “‘In 

applying section 352, “prejudicial” is not synonymous with 

“damaging.”’” (People v. Callahan (1999) 74 Cal.App.4th 356, 

371.) As discussed, the frequency and nature of Lopez’s prior 

firearms experience was highly probative of his ability to shoot 

Finson from a distance; and, while it could potentially evoke an 

emotional bias in the jury, that bias did not substantially 

outweigh the evidence’s probative value. 

Similarly, Lopez’s argument the evidence was improperly 

admitted to show his “general criminal disposition and that he, 

willy-nilly, shot his guns all the time at anything” is without 

merit. To reiterate, the evidence was offered for the nonpropensity purpose of establishing Lopez’s proficiency with 

firearms and his willingness to fire guns freely on his property.

Accordingly, any objection on those grounds would have been 

properly overruled. (See Evid. Code, § 1101, subd. (b) [“[n]othing 

in this section prohibits the admission of evidence that a person 

committed a crime, civil wrong, or other act when relevant to 

prove some fact (such as motive, opportunity, intent, preparation, 

plan, knowledge, identity, absence of mistake or accident . . . ) 

other than his or her disposition to commit such an act”]; see also 

People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 823.)

For these reasons it was not reasonably probable the trial 

court would have excluded Banghart’s and Burkes’s testimony. 

Because any objection would have been unwarranted, there was 

no ineffective assistance of counsel. (See People v. Thomas (1992) 
10

2 Cal.4th 489, 531 [failure to make meritless objection does not 

constitute ineffective assistance of counsel]; see also People v. 

Majors, supra, 18 Cal.4th at p. 403; People v. Cudjo, supra, 

6 Cal.4th at p. 616.)

DISPOSITION

The judgment is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.