Filed 11/16/21 P. v. Lopez CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS LOPEZ,

Defendant and Appellant.

 B303552

 (Los Angeles County

 Super. Ct. No. NA112378)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Richard R. Romero, Judge. Affirmed.

Maura F. Thorpe, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Chief Assistant Attorney General, Susan Sullivan Pithey, 
2

Senior Assistant Attorney General, Idan Ivri and Lindsay 

Boyd, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________________________________

INTRODUCTION

In April 2018, in the course of unsuccessfully 

attempting to evade arrest outside his home, appellant Luis 

Lopez dropped a bag containing contraband. This was 

witnessed by Jose R., who frequented a nearby restaurant 

owned by his family. Jose pointed police to the bag, and was 

listed as a witness in the police report concerning Lopez’s 

arrest, which led to an underlying case against Lopez. In 

November 2018, Lopez approached Jose -- with whom he had 

never spoken -- outside Jose’s family’s restaurant, and 

allegedly asked him to say hello to his (Jose’s) sons. In 

February 2019, pursuant to a subpoena, Jose reported to a 

courthouse for the preliminary hearing in the underlying 

case. Lopez saw Jose enter the courthouse around the same 

time he entered for his hearing, and during the lunch recess,

saw Jose immediately outside the courthouse. Unprompted, 

Lopez told Jose he (Lopez) was a good person and his 

neighbors did not like him. 

Based on Lopez’s encounters with Jose at the 

restaurant and courthouse, the People charged Lopez with 

two counts of attempting to dissuade a witness from giving 

testimony. The more serious count (count two), based on the 

restaurant encounter, alleged that the attempt was made 

through an implied threat of force or violence. The People 
3

also alleged that Lopez committed both offenses for the 

benefit of Rancho San Pedro (RSP), the criminal street gang 

to which he admittedly belonged. Before trial, the court 

denied Lopez’s motion under Penal Code section 995 to 

dismiss the gang allegation. The court further denied 

Lopez’s motion to bifurcate trial on the allegation, finding 

that gang evidence would be admissible at trial on the 

charged offenses even in the absence of the gang allegation. 

At trial, while Lopez disputed mentioning the names of 

Jose’s sons during the restaurant encounter, the facts of the 

courthouse encounter were largely undisputed. Various 

evidence related to Lopez’s RSP membership and RSP’s 

activities was admitted. Also admitted was a recording of a 

2010 phone call in which Lopez appeared to agree to a fellow 

RSP member’s request to “fire on” a third RSP member who 

had served as an informant, although no evidence was 

presented that Lopez ever acted on this request. 

The court delivered limiting instructions concerning 

the gang evidence and the 2010 call. The jury convicted 

Lopez on count one (the courthouse encounter), but found 

the gang allegation untrue. The jury failed to return a 

verdict on count two, which was later dismissed by the court.

On appeal, Lopez contends there was insufficient 

evidence to sustain his conviction on count one for 

attempting to dissuade a witness within the meaning of 

Penal Code section 136.1, subdivision (a)(2). He further 

contends the trial court prejudicially erred by (1) denying his 

pretrial motion under Penal Code section 995 to dismiss the 
4

gang allegation, which he asserts resulted in the admission 

of prejudicial gang evidence; (2) admitting the 2010 call 

concerning an informant, which he argues should have been 

excluded as prohibited character evidence under Evidence 

Code section 1101, subdivision (a); and (3) admitting certain 

gang evidence, which he argues should have been excluded

under Evidence Code section 352.

We conclude that substantial evidence supported 

Lopez’s conviction for attempting to dissuade Jose from 

giving testimony at the preliminary hearing, as Lopez’s 

undisputed statements to Jose at the courthouse could fairly 

be construed to fall within the description of Penal Code 

section 136.1, subdivision (a)(2). We further conclude that 

Lopez was not prejudiced by any of the trial court’s asserted 

errors, as the jury’s not-true finding on the gang allegation 

and the lack of conviction on the more serious witnessdissuasion count made clear the jury evaluated the evidence 

dispassionately, without being unduly influenced by 

evidence of Lopez’s gang affiliation or prior conduct in 

connection with his gang membership. Accordingly, we 

affirm.

PROCEEDINGS BELOW

A. Pretrial

In count one, based on Lopez’s interaction with Jose at 

the courthouse in February 2019, the People charged Lopez 

with attempting to dissuade a witness from giving testimony 

(Pen. Code, § 136.1, subd. (a)(2)). In count two, based on 
5

Lopez’s earlier interaction with Jose at the restaurant in 

November 2018, the People charged Lopez with attempting 

to dissuade a witness from giving testimony by force or 

threat (id., § 136.1, subd. (c)(1)). The People alleged that 

Lopez committed both offenses for the benefit of a criminal 

street gang and with the specific intent to promote criminal 

conduct by gang members (id., § 186.22, subd. (b)(1)(B)). 

Based on evidence presented at the preliminary 

hearing, the magistrate held Lopez to answer on both counts 

and on the gang allegation. Contending the magistrate 

erred in finding sufficient evidence to establish probable 

cause, Lopez moved to set aside the information in its 

entirety under Penal Code section 995. The trial court 

denied the motion. 

Lopez moved to bifurcate trial on the gang allegation 

from trial on the charged offenses, arguing that gang 

evidence (in general) was inflammatory and lacked probative 

value with respect to the charges. In opposition, the 

prosecutor argued that gang evidence was highly probative 

of Lopez’s motive to commit the charged offenses and his 

intent to dissuade Jose from giving testimony. In rebuttal, 

defense counsel argued that had the gang allegation not 

been filed, no gang evidence would be relevant or admissible 

at trial on the charged offenses. The court responded, “I 

disagree. I believe it would be independently admissible 

even apart from the gang allegation . . . . So the motion [for] 

bifurcation is denied.” 
6

B. Prosecution Case

1. The Restaurant Encounter

In 2018, Jose R. regularly visited his family’s

restaurant in San Pedro, about one block from the

apartment building where Lopez lived with his girlfriend, 

Melissa Delgado. Jose did not know Lopez or Delgado. On 

April 24, 2018, while walking across the street from Lopez’s 

building, Jose saw a car occupied by Lopez and Delgado pull 

into the driveway, pursued by a police vehicle. While Lopez 

fled from and eventually began wrestling with a pursuing 

officer, Jose saw a bag fall near Lopez. After the officer 

subdued and arrested Lopez, Jose informed another officer 

about the bag. Jose then walked to his family’s restaurant, 

where an officer found him and obtained his contact 

information for inclusion in the police report, which listed 

Jose as a witness. Soon after Lopez’s arrest, charges were 

brought against Lopez and Delgado. The jury was not 

informed of the nature of these underlying charges.

In November 2018 (some months after Lopez’s arrest), 

while exiting his family’s restaurant, Jose was approached 

by Lopez, with whom he had never spoken. Lopez said, “‘I 

know you. Jose [R.]”1 Jose asked Lopez how he was, and 

Lopez said he was fine. As they parted ways, Lopez said, 

“‘Say hello to Jonathan and Saul.’” Jonathan and Saul were 

two of Jose’s children. Jonathan testified that he did not 

know Lopez. 

1

Jose’s surname was redacted from the reporter’s transcript. 
7

2. The Courthouse Encounter

In early 2019, Los Angeles Police Department (LAPD)

Detective Christina Ledesma served Jose with a subpoena 

requiring him to appear at the preliminary hearing in the 

underlying case, scheduled for February 13, 2019. Jose 

reported to the courthouse on that date and waited there 

until the lunch recess, during which he exited the 

courthouse. When Jose returned to the courthouse, he was 

greeted outside by Lopez. He did not then recognize Lopez 

as the man from the restaurant encounter or the defendant 

in the preliminary hearing. After Jose returned Lopez’s 

greeting, Lopez said that “he was a good person,” and that “a 

neighbor . . . didn’t like him.” When asked on crossexamination what “exactly” Lopez said to him, Jose testified, 

“We said hello to each other. He talked about the court, and 

I told him good luck.” Lopez said nothing specific about why 

Jose was present at court. 

During his interaction with Lopez, Jose noticed 

Detective Ledesma, who was standing nearby with Officer

Robert Castruita, gesturing for him to approach. At the 

officers’ request, Jose told them what Lopez had said. The 

officers informed Jose that Lopez was the defendant in the 

underlying case. Upon hearing this, Jose realized that 

Lopez was also the man who had mentioned Jonathan and 

Saul outside his family’s restaurant. This realization made 

him worry for his younger children. Jose described the 

restaurant encounter to the officers. The officers told Jose 

that Lopez was a gang member, and that Jose should be 
8

careful. Until that point, Jose had not known Lopez was a 

gang member. 

3. Gang Experts

In addition to confirming his and Detective Ledesma’s 

conversation with Jose at the courthouse, Officer Castruita 

testified as a gang expert. He testified that during 

interactions with Lopez in 2009 and 2014, he had prepared 

field identification cards that documented Lopez’s selfidentification as a member of RSP, as well as a tattoo 

reading “RSP” on Lopez’s chest.2 The prosecutor showed 

photographs of Lopez’s many other tattoos to Officer 

Castruita, who opined that several of them signified 

membership in RSP or one of its subgroups, the 3rd Street 

Clique. The photographs also showed the following tattoos: 

(1) a dollar sign on Lopez’s forehead; (2) the phrase “‘Fuck 

Crash’” (referring to an LAPD gang unit) under his right eye; 

(3) the word “certified” on his upper lip, above a tattoo 

2

Other police officers testified about additional field 

identification cards prepared during interactions with Lopez or 

Delgado (unrelated to suspected criminal activity, other than 

littering and traffic offenses), between 2009 and 2015. The cards 

indicated that Delgado had several tattoos, including one on her 

right hand reading “‘Rancho L.S.’” Testifying as a defense 

witness, Delgado denied that she was an RSP member or had any 

tattoo consistent with RSP membership. Lopez initially denied 

that he had seen Delgado’s “‘Rancho L.S.’” tattoo, before 

acknowledging that he had seen it and that it reflected 

membership in RSP. 
9

referencing the 3rd Street Clique; (4) the phrase “‘Get rich or 

get life trying’” under his chin; (5) a brass knuckle on his left 

arm; and (6) the initials “‘C.K.’” immediately above his right 

hand. Officer Castruita testified that a brass knuckle is a 

weapon used to cause serious injury. He opined that Lopez’s 

“‘C.K.’” tattoo meant “Crip Killer,” communicating a 

willingness to kill members of a rival gang, the Dodge City 

Crips. Finally, he opined that Lopez’s “certified” tattoo 

meant that Lopez had earned the approval of the gang by 

putting in work. Asked to explain what he meant by 

“putting in work,” the officer responded, “[D]o[ing] stuff that 

benefits the gang. It could be being an enforcer, being 

someone that gets involved in altercations with rival gang 

members, even some of the members that are in bad 

standing in the gang, someone that’s willing to go out and 

commit shootings.” Defense counsel’s objection to this 

testimony for lack of foundation was overruled. On crossexamination, Officer Castruita acknowledged he did not 

know of any crime Lopez had committed to earn his tattoos.

Officer Angelo De Los Reyes also testified as a gang 

expert. He testified that RSP’s primary activities included

witness intimidation, vandalism, narcotic sales, firearm 

possession, shooting within city limits, assault with a deadly 

weapon, carjacking, robbery, and murder. When asked on 

cross-examination to explain what he meant by “primary” 

activities, he indicated that he used the term to refer to any 

activity RSP had engaged in within its territory, regardless 

of frequency or importance to the gang. He acknowledged 
10

that in the preceding three years, he had worked on only one 

murder investigation involving RSP. 

Officer De Los Reyes authenticated a record of a 2017 

conviction for unlawful possession of a firearm sustained by 

RSP member Jose Louis Rios. He testified that Rios had a 

tattoo of the number “187” on his head, and opined that this 

tattoo was a reference to Penal Code section 187, meaning 

homicide. He did not identify any homicide allegedly 

committed by Rios or any other RSP member.

In response to hypothetical questions modeled after 

Lopez’s encounters with Jose at the restaurant and 

courthouse, Officer De Los Reyes opined that Lopez’s 

statements to Jose were “nonaggressive” attempts to 

intimidate a witness for the benefit of RSP. He explained, in 

relevant part, “[T]his member is an asset to his organization, 

the older gang member. He’s probably the enforcer of the 

gang. One of the enforcers of the gang . . . . [¶] . . . [¶] . . . 

[K]nowing that, he knows he needs to stay out of prison just 

because of the value he has outside of prison to be able to 

conduct his business for himself and for the gang.” The 

prosecutor pointed out that she had not asked the officer to

assume that the gang member was an enforcer. She asked 

whether the officer’s opinion would change if he excluded all 

assumptions of that nature, and he said it would not, 

assuming the gang member was nevertheless important to 

the gang. On cross-examination, Officer De Los Reyes 

acknowledged that he had heard no evidence at trial that 

Lopez was an enforcer, or that Lopez was important to RSP. 
11

4. Phone Calls

During Officer Castruita’s testimony, the prosecutor 

played a recording of a jail call made in 2010 by RSP 

member Moses Escalante (also known as Playboy), who was 

then charged with soliciting a confidential informant (a 

fellow RSP member) to commit murder.3Escalante’s call 

was answered by fellow RSP member Robert Messersmith, 

who said he was at an auto dealership with Lopez. 

Escalante asked Messersmith if “that guy” (whom Officer 

Castruita opined was the informant) was “out there,” and 

Messersmith responded that he was hiding. After discussion 

of other topics, Messersmith inquired about the outlook of 

Escalante’s case, and Escalante responded “we gonna catch 

this guy in some lies.” Escalante then asked, “Where’s he at, 

you don’t know?” Messersmith responded, “No but I’m 

gonna find out.” 

After he and Escalante briefly discussed another topic, 

Messersmith handed the phone to Lopez. Allegedly referring 

to the informant, Escalante told Lopez he wished he had 

known “his status” earlier, adding he had heard in jail that

3

Before trial, anticipating an objection that Lopez’s 

participation in the 2010 call was prohibited character evidence, 

the prosecutor filed a motion for permission to introduce the 

evidence to prove motive and intent under Evidence Code section 

1101, subdivision (b). The trial court granted the motion, 

explaining that the call was “strongly probative of Mr. Lopez’s 

attitudes towards protection of the gang and fellow gang 

members,” and that its probative value was not substantially 

outweighed by the risk of unfair prejudice. 
12

“his whole family” shared his status. Lopez responded, 

“Yeah I already know.” After a brief discussion of another 

topic, Escalante told Lopez, “If you see him fire on him if you 

can.” Lopez responded, “Alright Play.” They then ended the 

call. Officer Castruita opined that Escalante was expressing 

disappointment in the gang for failing to warn him about the 

informant, and telling Lopez to attempt to kill the informant 

if he had the chance. LAPD Sergeant Christian Urbina, who 

had investigated Escalante’s solicitation-for-murder case,

testified that although Lopez was arrested in the course of 

the investigation, any charges against Lopez were dismissed. 

The prosecutor also played recordings of two calls 

between Messersmith and Lopez in April 2018. 

In the first, Messersmith said he might need Lopez because 

“Stoney’s son just called me and he said . . . he thinks that 

some fools might wanna jump him,” and Lopez agreed to join 

a three-way call. When asked to opine on the meaning of 

this conversation, Officer Castruita testified, “Mr. 

Messersmith is telling Mr. Lopez that he’s gonna need him 

because there’s someone that wants to jump Stoney’s son. 

Stoney I know to be a Mexican Mafia member.” He opined 

that the conversation was related to RSP’s activities, but did 

not elaborate. In the second 2018 call, Messersmith told 

Lopez to ask “Monster” his whereabouts because they would 

be “jumping . . . in” two men, and Lopez informed 

Messersmith that Monster had not answered his phone. 

Officer Castruita opined that Monster was an RSP member 
13

and that Messersmith was asking for Lopez’s assistance in 

arranging new RSP members’ initiation. 

C. Defense Case and Rebuttal

Lopez testified that before he ever spoke to Jose, he 

and Delgado often visited the restaurant owned by Jose’s 

brother, who lived nearby with Jose’s nephew Daniel. He 

and Delgado knew Daniel. Delgado corroborated this 

testimony. 

Lopez further testified that he sometimes saw Jose in 

the area, but never spoke to him until November 2018, 

outside the restaurant. He claimed that he asked Jose about 

Daniel’s whereabouts (hoping to smoke with him), and after 

Jose responded that Daniel was at home, he asked Jose to

say hello to Daniel for him.4 Lopez denied that he used 

Jose’s name or mentioned Jonathan and Saul. He further

denied that he intended to dissuade Jose from giving 

testimony, or even knew that Jose was a witness. He 

claimed he never asked his counsel in the underlying case 

who the witnesses were, and never read a copy of the police 

report. 

On the day of his preliminary hearing, Lopez first saw 

Jose as they both waited in line to pass through security and 

enter the courthouse. During the lunch recess, he exited the 

courthouse and again saw Jose “[r]ight outside the doors.” 

Again, Lopez denied that he intended to dissuade Jose from 

4

Jose had testified that Lopez did not mention Daniel. 
14

giving testimony, or even knew that Jose was a witness, 

claiming he decided to approach Jose because he “kn[e]w 

him from around the neighborhood.” He greeted Jose, who

walked over to him. He told Jose “[t]hat it’s embarrassing, 

and that I’m not a bad person and some neighbors just don’t 

like me.” When asked on direct and cross-examination to 

explain why he told Jose these things, he mentioned that 

Jose had seen him at court, and that his neighbors 

(potentially including Jose) were aware that (1) in April 

2018, he had been arrested outside his home; (2) a week 

later, police had “raided” his home; and (3) in December 

2018, he had been shot in the neighborhood. He testified, “I 

don’t want him to think I’m a bad person.” He further 

testified that after he spoke to Jose, Jose merely responded

“‘Okay’” and mentioned that someone wanted to take him 

out to lunch, before Detective Ledesma and Officer Castruita 

interrupted. 

Lopez acknowledged, on direct examination, that he 

had sustained a 2007 conviction for felony assault and 

battery, and a 2014 conviction for second degree burglary. 

On cross-examination, he further acknowledged that he had 

lied to his parole officer about his home address, and had 

repeated this lie to a police officer on the day of his arrest.5 

5

The jury was instructed that it could consider a witness’s 

commission of a crime or other misconduct in evaluating the 

witness’s credibility. 
15

A defense gang expert testified that Lopez’s tattoos did 

not show he had committed any crime. He further testified 

that RSP’s primary activities are social, and that its primary 

criminal activities are vandalism and drug sales. He opined 

that if Lopez committed the charged witness-dissuasion

offenses, he did so for his own benefit, not for the benefit of 

RSP. He suggested that had Lopez intended to dissuade 

Jose from giving testimony, Lopez likely would have 

attempted to do so earlier, more often, through fellow gang 

members, and in an unambiguously threatening manner. 

Called as a rebuttal witness, Office Castruita testified 

that it was consistent with RSP’s witness intimidation 

tactics to use subtle means of dissuasion. The prosecutor, 

noting that RSP sounded like a “scary” gang because its 

primary activities allegedly included murder, asked why a 

member of the gang would forego threats of violence in favor 

of a subtler method of intimidation. Officer Castruita 

responded that RSP members knew they were more likely to 

be prosecuted if they made direct threats. 

D. Jury Instructions and Closing Arguments

The court instructed the jury that if the prosecution 

proved by a preponderance of the evidence that Lopez 

committed the uncharged conduct of “agree[ing] to 

participate in the intimidation of a witness” (as alleged with 

respect to the 2010 call with Escalante), the jury could, but 

was not required to, consider that evidence for the purpose of 

deciding whether Lopez acted with the specific intent 
16

required to prove the charged offenses. The court further 

instructed the jury, “In evaluating this evidence, consider 

the similarity or lack of similarity between the uncharged 

acts and the charged offenses. [¶] Do not consider this 

evidence for any other purpose. [¶] Do not conclude from 

this evidence that the defendant has a bad character or is 

disposed to commit crime.” With respect to the gang 

evidence, the court instructed the jury, “You may consider 

evidence of gang activity only for the limited purpose of 

deciding whether: [¶] The defendant acted with the intent, 

purpose, and knowledge that are required to prove the 

gang-related enhancements charged. [¶] OR [¶] The 

defendant had a motive to commit the crimes charged. [¶] 

You may not consider this evidence for any other purpose. 

You may not conclude from this evidence that the defendant 

is a person of bad character or that he has a disposition to 

commit crime.” 

The prosecutor repeatedly reminded the jurors that 

their duty was not to judge Lopez’s character, and argued 

their principal duty was instead to decide whether Lopez or 

Jose had told the truth about their encounters. With respect 

to the restaurant encounter (count two), the prosecutor 

argued that Lopez’s reference to Jose’s sons, especially when 

understood in the context of Lopez’s gang membership, 

constituted an implied threat to harm Jose or his family if he 

gave testimony. With respect to the courthouse encounter 

(count one), the prosecutor argued that Lopez intended to 

convince Jose not to testify, thereby interfering with the 
17

orderly administration of justice, by convincing Jose he was 

a good person. She argued Lopez had no plausible reason to 

speak to Jose at the courthouse other than an intent to 

dissuade him from giving testimony. She further argued 

that the 2010 call was circumstantial evidence of such intent 

because it showed that RSP members had a longstanding 

practice of seeking out witnesses against them, undermining 

the credibility of Lopez’s claim that he did not know Jose 

was a witness because he had never asked who the witnesses 

were. The prosecutor reminded the jury that the 2010 call 

was “not in there to say the defendant is a bad person.” 

The prosecutor further argued that Lopez committed 

both charged offenses for the benefit of RSP. Although the 

prosecutor mentioned evidence that RSP’s primary activities 

included violent crimes such as murder and assault (along 

with nonviolent crimes), she did not refer to any specific 

instance of violent crime. She relied only on nonviolent 

convictions -- the charged witness-dissuasion offenses, and 

RSP member Rios’s conviction for being a felon in possession 

of a firearm -- in arguing that RSP had engaged in a pattern 

of criminal activity, as required to prove the gang allegation. 

The prosecutor did not mention Rios’s “187” tattoo, or argue 

that Lopez’s tattoos reflected criminal activity. Nor did she 

mention the Mexican Mafia, or any testimony that Lopez 

was an “enforcer” for RSP.

Lopez’s counsel argued the prosecution had failed to 

prove beyond a reasonable doubt that Lopez intended to 

dissuade Jose from giving testimony, or even that Lopez 
18

knew Jose was a witness. He observed there was no dispute 

that at the courthouse, Lopez told Jose he was a good person 

and his neighbors did not like him. Counsel argued that

these statements were motivated by Lopez’s embarrassment 

about what Jose or his family might think of him, and that 

they could not reasonably be interpreted as an attempt to 

dissuade Jose from giving testimony. He argued there was 

no similarity between Lopez’s statements to Jose and his 

alleged agreement in 2010 to attempt to kill an informant 

against Escalante, and reminded the jury of the instruction 

to consider their similarity or lack thereof. Finally, counsel 

argued that if the jury found Lopez attempted to dissuade 

Jose from giving testimony against him, it should not find he 

did so in order to benefit RSP, as Lopez naturally would 

have been motivated by his own benefit in remaining out of 

prison. 

E. Verdict and Sentencing

The jury convicted Lopez of attempting to dissuade a 

witness as charged in count one (the courthouse encounter), 

but found the gang allegation untrue. The jury failed to 

return a verdict on count two, reporting that it was 

deadlocked. The court declared a mistrial on count two, and 

dismissed the count after the prosecution represented it

would not proceed. 

The court sentenced Lopez to three years 

imprisonment. Lopez timely appealed. 
19

DISCUSSION

A. Sufficiency of the Evidence

Lopez contends there was insufficient evidence to 

sustain his witness-dissuasion conviction under Penal Code 

section 136.1, subdivision (a)(2). “‘When considering a 

challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most 

favorable to the judgment to determine whether it contains 

substantial evidence -- that is, evidence that is reasonable, 

credible, and of solid value -- from which a reasonable trier 

of fact could find the defendant guilty beyond a reasonable 

doubt.’” (People v. Morales (2020) 10 Cal.5th 76, 88.) A court 

applying this standard “‘“‘presumes in support of the 

judgment the existence of every fact the trier could 

reasonably deduce from the evidence.’”’” (Ibid.)

Penal Code section 136.1, subdivision (a)(2) prohibits 

“[k]nowingly and maliciously attempt[ing] to prevent or 

dissuade any witness or victim from attending or giving 

testimony at any trial, proceeding, or inquiry authorized by 

law.” “‘Malice’” is defined to mean “an intent to vex, annoy, 

harm, or injure in any way another person, or to thwart or 

interfere in any manner with the orderly administration of 

justice.” (Id., § 136, subd. (1).) Under this definition, the 

malice requirement has little independent significance, as 

“preventing [or dissuading] a witness from testifying always 

interferes in some manner ‘with the orderly administration 

of justice . . . .’” (People v. Wahidi (2013) 222 Cal.App.4th 
20

802, 807 (Wahidi).) “The crime of attempting to dissuade a 

witness from testifying is a specific intent crime. [Citation.] 

‘Unless the defendant’s acts or statements are intended to 

affect or influence a potential witness’s or victim’s testimony 

or acts, no crime has been committed under this section.’ 

[Citation.] The circumstances in which the defendant’s 

statement is made, not just the statement itself must be 

considered to determine whether the statement constitutes 

an attempt to dissuade a witness from testifying. [Citation.] 

If the defendant’s actions or statements are ambiguous, but 

reasonably may be interpreted as intending to achieve the 

future consequence of dissuading the witness from testifying, 

[a jury is entitled to find] the offense has been committed.” 

(Id. at 806.)

Here, the jury reasonably could find that in speaking to 

Jose during the preliminary hearing’s lunch recess, Lopez 

knowingly and maliciously attempted to dissuade Jose from 

giving testimony at the hearing. Even assuming Lopez had 

not previously known that Jose was a witness, the jury 

reasonably could find that Lopez realized Jose was a witness 

when he saw Jose (whom he recognized from his 

neighborhood, where he was arrested in the underlying case) 

entering the courthouse at the same time he was entering

for his preliminary hearing, or when he saw Jose

immediately outside the courthouse during the lunch recess. 

The jury was not compelled to find that Lopez encountered 
21

Jose by accident.6Further, it was undisputed that Lopez 

brought himself to Jose’s attention at the courthouse and 

initiated a conversation in defense of his character, even 

though he and Jose had spoken only once before, in passing. 

Given that Lopez’s unprompted defense of his character was 

made on the courthouse steps, to a person he might 

reasonably have believed to be a witness in the criminal 

proceeding against him, the jury reasonably could infer that 

Lopez intended to dissuade Jose from giving testimony 

unfavorable to him, by persuading Jose that he (Lopez) did 

not deserve the potential consequences of unfavorable 

testimony. This inference, in turn, supported a finding of 

malice. (See Wahidi, supra, 222 Cal.App.4th at 807 

[defendant’s intentional attempt to convince witness not to 

testify at preliminary hearing satisfied malice requirement].) 

We conclude that substantial evidence supported the jury’s

finding that Lopez knowingly and maliciously attempted to 

dissuade Jose from giving testimony. Because this evidence 

is substantial without consideration of any gang evidence, 

we need not address Lopez’s arguments that certain gang 

evidence was insufficient to support his conviction. 

Lopez fails to cite any case reversing a witnessdissuasion conviction for insufficient evidence. Instead, he

6

As it was instructed, the jury was entitled to evaluate 

Lopez’s credibility in light of his two prior felony convictions and 

other misconduct, such as his lies to parole and police officers 

about his home address.
22

contrasts the evidence here with the evidence found 

sufficient in other cases. (See Wahidi, supra, 222 

Cal.App.4th at 804-806 [defendant approached witness one 

day before preliminary hearing and asked to “settle” case 

through informal Muslim dispute-resolution custom]; People 

v. Young (2005) 34 Cal.4th 1149, 1210 [defendant punched 

witness in express retaliation for past cooperation with 

police, implying threat to harm witness if he testified in 

future]; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1337, 

1343-1345 [two days after witness testified against

defendant’s brother at preliminary hearing, defendant told 

witness she had “‘fucked up his brother’s testimony’” and he 

would “‘talk to’” fellow gang members, implying threat of 

force or violence]; People v. Ford (1983) 145 Cal.App.3d 985, 

987, 989 [at conclusion of preliminary hearing, defendant 

threatened to “‘get’” witness and mentioned that witness had

kids]; cf. People v. Lyons (1991) 235 Cal.App.3d 1456, 

1458-1459 & fn. 3 [defendant was not prejudiced by 

erroneous instruction that witness dissuasion was 

general-intent crime, where specific intent to dissuade was 

only plausible explanation for defendant’s sending letter to 

witness implicitly demanding that witness withhold or 

falsify testimony].) The holdings of those cases do not 

suggest that the evidence here was insufficient. (See People 

v. Casares (2016) 62 Cal.4th 808, 828 [“‘When we decide 

issues of sufficiency of evidence, comparison with other cases 

is of limited utility, since each case necessarily depends on

its own facts’”], disapproved on another ground by People v. 
23

Dalton (2019) 7 Cal.5th 166; People v. Mendoza (2011) 52 

Cal.4th 1056, 1075 [“defendant asserts his actions were not 

of the same character as those found to constitute lying in 

wait in other cases . . . . No matter. Because each case 

necessarily depends on its own facts, and because 

defendant’s conduct clearly satisfied each of the lying-in-wait 

requirements, the attempt to contrast this case with others 

falls short”].) As we have explained, the undisputed facts of 

the courthouse encounter were sufficient to support the 

jury’s finding that Lopez knowingly and maliciously 

attempted to dissuade Jose from giving testimony at the 

preliminary hearing.

B. Motion to Dismiss Gang Allegation

The jury found untrue an allegation that Lopez 

committed the offense of conviction for the benefit of a gang. 

Nevertheless, Lopez contends the trial court prejudicially 

erred by denying his pretrial motion under Penal Code 

section 995 (Section 995) to dismiss the gang allegation, 

asserting that the allegation resulted in the admission of 

prejudicial gang evidence. 

Section 995 requires a trial court to dismiss an 

allegation from an information if the magistrate erred in 

finding probable cause. (See Pen. Code, § 995, subd. 

(a)(2)(b).) A trial court’s denial of a Section 995 motion is 

reviewed for error under an “‘exceedingly low’” standard, 

under which the reviewing court asks only “‘whether the 

evidence is such that “a reasonable person could harbor a 
24

strong suspicion of the defendant’s guilt.”’” (People v. 

Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, 245.) 

“[E]ven an erroneous denial of a section 995 motion justifies 

reversal of a judgment of conviction only when a defendant is 

able to demonstrate prejudice at trial flowing from the 

purportedly inadequate evidentiary showing at the 

preliminary hearing.” (People v. Crittenden (1994) 9 Cal.4th 

83, 136-137.)

We need not decide whether the court erred in denying 

Lopez’s motion under Section 995 to dismiss the gang 

allegation, as we conclude any error was harmless. (See 

People v. Letner and Tobin (2010) 50 Cal.4th 99, 138 [“We do 

not reach the merits of the question whether the trial court 

erred by denying the section 995 motions, because 

defendants cannot establish that any error in this regard 

was prejudicial”].) The record does not support Lopez’s

assertion of a causal connection between the denial of his 

motion and the admission of prejudicial gang evidence. 

After the trial court declined to dismiss the gang allegation, 

Lopez moved to bifurcate trial on the allegation from trial on 

the charged offenses, and argued gang evidence would be 

irrelevant and inadmissible in the latter. The court 

disagreed and denied the bifurcation motion (a ruling Lopez 

does not challenge), concluding that gang evidence “would be 

independently admissible even apart from the gang 

allegation . . . .” Thus, the record indicates that even had the 

court granted Lopez’s motion under Section 995, the court 

would have admitted some or all of the challenged gang 
25

evidence. Regardless of whether the court erred in 

admitting the evidence -- an issue we address below -- any 

error did not flow from the denial of the Section 995 motion. 

(Cf. People v. Ramirez (2016) 244 Cal.App.4th 800, 820-823 

[defendant was prejudiced by erroneous denial of motion 

under Section 995 to dismiss gang allegations and gangparticipation charges, where prejudicial gang evidence was 

admitted “[a]s a direct result” of denial].) Because any error 

in the denial of the motion was harmless, it does not require 

reversal. (See People v. Crittenden, supra, 9 Cal.4th at 

136-137.)

C. Evidence of 2010 Phone Call

Lopez contends the trial court prejudicially erred in

admitting, as evidence of his uncharged act of “agree[ing] to 

participate in the intimidation of a witness,” the recording of

the 2010 call in which he allegedly agreed to a fellow gang 

member’s request to “fire on” an informant. Generally, 

“evidence of a person’s character or a trait of his or her 

character,” including such evidence in the form of “evidence 

of specific instances of his or her conduct,” is inadmissible 

“when offered to prove his or her conduct on a specified 

occasion.” (Evid. Code, § 1101, subd. (a).) This rule does not 

prohibit the admission of “evidence that a person committed 

a[n] . . . act when relevant to prove some fact (such as 

. . . intent . . . ) other than his or her disposition to commit 

such an act.” (Id., § 1101, subd. (b).) Evidence of uncharged

acts is admissible to prove intent if there is “‘sufficient 
26

evidence for the jury to find defendant committed both sets 

of [uncharged and charged] acts, and sufficient similarities 

to demonstrate that in each instance the perpetrator acted 

with the same intent or motive.’” (People v. Daveggio and 

Michaud (2018) 4 Cal.5th 790, 827.) “[T]he admission of 

evidence, even if erroneous under state law, results in a due 

process violation only if it makes the trial fundamentally 

unfair. [Citations.] Absent fundamental unfairness, state 

law error in admitting evidence is subject to the traditional 

[People v.] Watson [(1956) 46 Cal.2d 818] test: The reviewing 

court must ask whether it is reasonably probable the verdict 

would have been more favorable to the defendant absent the 

error.” (People v. Partida (2005) 37 Cal.4th 428, 439 

(Partida).)

Here, we need not decide whether the court erred in 

admitting the 2010 call, as we conclude any error was 

harmless. The jury was instructed that it could consider 

evidence of Lopez’s uncharged acts only in deciding whether 

Lopez had the intent required to prove the charged offenses, 

viz., intent to dissuade Jose from attending or giving 

testimony at an authorized proceeding. In arguing that 

Lopez acted with such intent, the prosecutor neither 

emphasized the 2010 call nor argued that it evidenced 

Lopez’s disposition to “fire on” or otherwise harm witnesses. 

Instead, the prosecutor merely argued the call evidenced a 

practice within Lopez’s gang to seek out the identities of 

witnesses, undermining the credibility of Lopez’s claim that 

he did not know Jose was a witness. There is no indication 
27

in the record that the jury relied on the 2010 call to find

Lopez knew Jose was a witness; the jury returned a 

conviction only with respect to the courthouse encounter, 

during which -- as we have discussed -- Lopez had reason to 

know Jose was a witness, even assuming he had not

previously sought out that information. Nor is there any 

indication in the record that the jury relied on the 2010 call 

for other purposes. Defense counsel persuasively argued 

that the charged and uncharged acts lacked any material 

similarity and reminded the jury of the instruction requiring 

it to consider their similarity or lack thereof. The 

prosecutor, in turn, reminded the jury that the 2010 call was 

not admitted “to say the defendant is a bad person.” Finally, 

the court instructed the jury not to conclude from the 

challenged evidence that Lopez had a bad character or was 

disposed to commit crime. We presume the jury followed the 

court’s instructions. (See People v. Williams (2009) 170 

Cal.App.4th 587, 607.) Nothing in the record rebuts that 

presumption, especially given the jury’s not-true finding on

the gang allegation and its failure to return a conviction on

the more serious of the two witness-dissuasion charges. For 

these reasons, we conclude that Lopez has failed to show a 

reasonable probability that he would have obtained a more 

favorable result had the 2010 call been excluded, and reject 

his contention that the call’s admission violated his due 

process rights. In sum, any error in the call’s admission was 

harmless. (See Partida, supra, 37 Cal.4th at 439.) 
28

C. Gang Evidence

Lopez contends the trial court prejudicially erred in 

failing to exclude certain gang evidence under Evidence 

Code section 352, arguing the evidence’s probative value was 

substantially outweighed by the risk of unfair prejudice.

“The evidence barred by Evidence Code section 352 is 

evidence that uniquely causes the jury to form an 

emotion-based bias against a party and that has very little 

bearing on the issues of the case.” (People v. Thornton (2007) 

41 Cal.4th 391, 427.) “[B]ecause gang evidence may have a 

highly inflammatory impact on the jury, trial courts should 

carefully scrutinize such evidence before admitting it.” 

(People v. Montes (2014) 58 Cal.4th 809, 859.) But “‘nothing 

bars evidence of gang affiliation that is directly relevant to a 

material issue.’” (Ibid.) “‘The admission of gang evidence 

over an Evidence Code section 352 objection will not be 

disturbed on appeal unless the trial court’s decision exceeds 

the bounds of reason.’” (Ibid.) 

Here, we conclude the trial court acted within its 

discretion in admitting certain evidence challenged by 

Lopez, viz., photographs of Lopez’s tattoos of a brass knuckle 

and the initials “‘C.K.,’” along with Officer Castruita’s 

testimony that a brass knuckle is a weapon used to cause 

serious injury, and that “‘C.K.’” communicated willingness to 

kill members of the Dodge City Crips. Because these tattoos 

were located on Lopez’s left arm (the brass knuckle) and 

immediately above his right hand (“‘C.K.’”), the jury 

reasonably could find that unless Lopez covered them with 
29

long sleeves, they were visible to conversation partners and

passersby. The jury reasonably could further find that 

Lopez intended these tattoos to visibly associate himself 

with criminal activity, in reliance on Officer Castruita’s 

testimony, in conjunction with unchallenged evidence that 

Lopez had a tattoo reading “Get rich or get life trying” under 

his chin. These findings were relevant to the charged 

offenses under two theories. First, Lopez might have 

expected Jose to perceive his visible association with 

criminal activity, and therefore to interpret his words as 

more threatening than they seemed on their face, supporting 

the prosecution theory that Lopez’s reference to Jose’s sons 

was an implied threat. (Cf. People v. Iboa (2012) 207 

Cal.App.4th 111, 119-120 [substantial evidence supported 

defendant’s convictions for deterring executive officers from 

performing duties by threat of unlawful violence, despite 

defendant’s failure to unambiguously threaten bodily harm, 

where his statements were made in context of aggressive 

conduct, including “showing off his gang tattoos”]; People v. 

Islas (2012) 210 Cal.App.4th 116, 126-127 [similar, with 

respect to defendants’ convictions for false imprisonment by 

threat of harm].) Second, the tattoos suggested Lopez took 

pride in advertising his association with criminal activity, 

undermining the credibility of his claim that being seen by 

Jose as a criminal defendant caused him such

embarrassment that he felt motivated to defend his 

character. This evidence had probative value and posed only 

a limited risk of unfair prejudice, as Officer Castruita did not 
30

suggest Lopez had actually used a brass knuckle or attacked 

a rival gang member. Indeed, the officer acknowledged he 

did not know of any crime reflected in Lopez’s tattoos. We 

conclude the trial court did not exceed the bounds of reason 

in admitting this evidence. 

We need not decide whether the court erred in 

admitting the remaining gang evidence challenged by Lopez. 

We agree with the People that Lopez forfeited one of his 

challenges, and that in any event, Lopez has not shown 

prejudice. We address each piece of challenged evidence in 

turn.

First, we agree with the People that Lopez forfeited his 

objection under Evidence Code section 352 to Officer De Los 

Reyes’s testimony, in response to a hypothetical question 

modeled after Lopez’s charged conduct, suggesting that 

Lopez was likely an enforcer for his gang. Lopez did not 

object to this testimony in the trial court. (See People v. 

Redd (2010) 48 Cal.4th 691, 729 [“‘trial counsel’s failure to 

object to claimed evidentiary error on the same ground 

asserted on appeal results in a forfeiture of the issue on 

appeal’”].) Nor did Lopez object on this ground to Officer 

Castruita’s testimony similarly suggesting that Lopez might 

have earned his “certified” tattoo by serving as an enforcer. 

In any event, Lopez could not have been prejudiced by either 

officer’s suggestion that he might have been an enforcer. 

The prosecutor made no such suggestion. On the contrary, 

she reminded Officer De Los Reyes that she had not asked 

him to assume Lopez’s hypothetical stand-in was an 
31

enforcer. On cross-examination, the officer acknowledged 

he had heard no evidence at trial suggesting Lopez was an 

enforcer, or even important to RSP. The record does not 

show a reasonable probability that in returning a conviction 

on count one, the jury relied upon the officers’ brief 

references to Lopez’s speculated status as an enforcer.

Nor does the record show such a probability with 

respect to Officer De Los Reyes’s testimony that murder and 

other violent crimes were included in RSP’s primary 

activities. The officer acknowledged that RSP’s primary 

activities also included nonviolent (or potentially nonviolent)

offenses, including vandalism, narcotics sales, firearm 

possession, and witness intimidation. He further 

acknowledged that he deemed the gang’s activities “primary” 

without regard to their frequency or importance to the gang, 

and that he had worked on only one murder investigation 

involving RSP in the preceding three years. The defense 

gang expert contradicted the officer’s opinion that RSP’s 

primary activities included violent offenses, testifying that 

all its primary activities were nonviolent (social activities, 

vandalism, and narcotic sales). In closing argument, the 

prosecutor did not refer to any specific instance of violent 

crime. We conclude the record does not support Lopez’s 

speculation that this evidence “confused the jury into 

thinking that because appellant is a dangerous and violent 
32

gang member, he must have been acting with [prohibited] 

intent . . . .”7 

Finally, we reject Lopez’s contention that he was 

prejudiced by Officer Castruita’s testimony that he knew 

“Stoney” -- whose son was the subject of a 2018 call between 

Lopez and Messersmith -- to be a member of the Mexican 

Mafia. Officer Castruita said nothing about any relationship 

Lopez might have had with Stoney or the Mexican Mafia. 

Nor did he say anything about the Mexican Mafia’s nature or

activities. Unlike in People v. Albarran (2007) 149 

Cal.App.4th 214, on which Lopez relies, the prosecutor never

even mentioned the Mexican Mafia. (Cf. id. at 220, 227-228 

[police officer’s and prosecutor’s references to Mexican Mafia 

contributed to “panoply” of prejudicial gang evidence 

admitted at defendant’s trial, where prosecutor told jury that 

Mexican Mafia was “violent” gang in control of other gangs, 

and that defendant had tattoo showing “allegiance” to it].) 

We conclude it is not reasonably probable that in returning a 

conviction on count one, the jury seized upon Officer 

Castruita’s passing mention of Stoney’s membership in the 

7

As Lopez observes, in the course of examining Officer 

Castruita as a rebuttal witness, the prosecutor mentioned that 

RSP sounded like a “scary” gang because its primary activities 

allegedly included murder. While this passing remark might 

have been intemperate, it was made in the context of asking why 

Lopez, as a member of a gang that allegedly committed violent 

crimes, might forego threats of violence in favor of a subtler 

method of dissuasion -- underscoring the nonviolent nature of the 

charged offenses.
33

Mexican Mafia. (Cf. People v. Penunuri (2018) 5 Cal.5th 126, 

147-149 [where expert testified that gang sign made by 

members of defendant’s gang showed allegiance to Mexican 

Mafia, but expressly did not claim that defendants were 

members of Mexican Mafia, trial court acted within its 

discretion by determining that any potential prejudice from 

expert’s “brief” reference could be cured by admonition].) 

Our conclusions above are further supported by facts 

suggesting the gang evidence generally had little or no 

impact. The court instructed the jury, “You may not 

conclude from this evidence [of gang activity] that the 

defendant is a person of bad character or that he has a 

disposition to commit crime.” Reinforcing this instruction, 

the prosecutor repeatedly reminded the jurors that their 

duty was not to judge Lopez’s character. Again, we presume 

the jury followed the court’s instructions. (See People v. 

Williams, supra, 170 Cal.App.4th at 613.) This presumption 

is bolstered by the jury’s not-true finding on the gang 

allegation, as well as its failure to return a verdict on the 

more serious of the two witness-dissuasion counts. (See id. 

at 612-613 [no reasonable likelihood cumulative gang 

evidence inflamed jury’s passions, where jury found gang 

allegation untrue and convicted defendant only of simple 

possession rather than possession for sale]; cf. People v. 

Garcia (2008) 168 Cal.App.4th 261, 278 [acquittal of 

codefendant who belonged to gang and allegedly claimed 

gang membership at scene of charged shooting indicated 

that jury “assessed each defendant’s guilt and innocence on 
34

an individual basis,” and that “gang evidence did not have 

the prejudicial effect of causing the jury to convict solely 

because of gang affiliation”].) The jury convicted Lopez only 

on count one, concerning which the central facts were 

undisputed. The jury’s task was simply to interpret, in their 

context, Lopez’s undisputed statements at the courthouse

which, as explained, supported its finding that Lopez 

knowingly and maliciously attempted to dissuade Jose from 

giving testimony at the preliminary hearing. Lopez merely 

speculates that the jury might have interpreted the

courthouse encounter differently had the gang evidence been 

excluded. Such speculation does not establish a reasonable 

probability of a more favorable outcome. For the same 

reasons, we reject Lopez’s contention that the admission of 

the challenged gang evidence violated his due process rights. 

In sum, to the extent the court erred in admitting any of the 

challenged evidence, any error was harmless.8 (See Partida, 

supra, 37 Cal.4th at 439.) 

8

The cases on which Lopez relies are distinguishable. (See 

People v. Albarran, supra, 149 Cal.App.4th at 219-222 & fns. 4-5, 

227-232 & fn. 16 [defendant’s due process rights were violated by 

admission of “panoply” of gang evidence, where gang evidence 

bolstered evidence of defendant’s identity as perpetrator, 

prosecutor emphasized gang evidence in arguing it showed 

criminal disposition, jury convicted defendant of all offenses not 

charged in alternative, and jury found all associated gang 

allegations true]; In re Wing Y. (1977) 67 Cal.App.3d 69, 78-79 

[minor was prejudiced by admission of evidence of gang 

membership and gang’s criminal activities, where prosecution 

(Fn. is continued on the next page.)
35

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.

offered gang evidence to prove minor’s identity as perpetrator 

under theory of “‘guilt by association,’” and other evidence of

identity was “not particularly strong or persuasive”].)