Filed 3/26/15 P. v. Netherly CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B254670

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA410664)
         v.

CHARLES WAYNE NETHERLY,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Richard
S. Kemalyan, Judge. Affirmed.


         Comar Law and D. Inder Comar under appointment by the Court of Appeal, for
Defendant and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb,
Jonathan J. Kline and Garret A. Gorlitsky, Deputy Attorneys General, for Plaintiff and
Respondent.
                                    ______________________________
       A jury found defendant Charles Wayne Netherly guilty of three counts of second
degree robbery and one count of attempted second degree robbery. The jury found true
gang enhancements alleged as to each count. On appeal, Netherly contends there was
insufficient evidence to support the true finding on the gang enhancement as to count 2
(attempted robbery). Netherly further argues the trial court erred in admitting evidence of
his prior uncharged criminal conduct. We affirm the judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Around 4:00 p.m. on April 27, 2013, Bryan Simpson and two friends, Brandon
White and Deonce Mosley, each purchased one ounce of marijuana at a dispensary in Los
Angeles. As they left the shop, Netherly and a group of men were standing outside.
Netherly and one other man approached. Netherly asked White if he had marijuana.
When White said he did, Netherly demanded the marijuana. White refused. Netherly
said, “We’re shutting this shop down on ‘60’s.” Simpson lived in the neighborhood and
knew the area was claimed by the Neighborhood 60 Crips. He understood Netherly’s
statement as one referring to the gang. Other men who were with Netherly surrounded
Simpson and his friends. Mosley told White to give up the marijuana because “it’s not
worth it.” Netherly put his hand in White’s pocket; White relented and gave Netherly the
marijuana. Simpson was concerned that if he did not turn over the marijuana, Netherly
and those with him might have a gun or might “jump” him and his friends. Mosley and
Simpson gave Netherly their marijuana, then they three left.
       At around 4:30 p.m. that same afternoon, Joseph Eagan was waiting for a bus
across the street from the marijuana dispensary. He saw a group of men outside a shop
across the street from the bus stop. Netherly called across the street, asking Eagan for the
time. Eagan consulted his phone and answered, “4:30.” Netherly left the group, crossed
the street, and approached Eagan. Netherly asked Eagan what kind of phone he had.
Eagan said he had the new LG cell phone. Netherly responded, “ ‘Oh, well, I’m going to
have to take that.’ ” Eagan refused. Netherly then said, “ ‘Well, I’m going to have to call




                                             2
my homeys over here to come help me ‘cause I’m going to beat you up.’ ”1 As Eagan
tried to walk away, Netherly “puffed his chest” against Eagan’s shoulder. Netherly
grabbed Eagan’s shirt and repeated that he would have to beat him up. Eagan was able to
get around Netherly and run away. When he looked back he saw Netherly’s group
crossing the street. Eagan went home and told his mother what had happened. She
insisted they return to the bus stop. Eagan and his mother called the police after they
spotted Netherly and four or five other people on the next block. Netherly was arrested.
As it happened, Simpson had returned to the marijuana dispensary to be reimbursed for
the stolen marijuana. He saw Netherly and his group being arrested. Simpson told police
the group had robbed him earlier that afternoon.
       Los Angeles Police Officer Kevin Gaines testified as a gang expert. Gaines
described the area claimed by the Rolling 60’s Neighborhood Crips gang (Rolling 60’s),
the gang’s common symbols, and its primary activities. He opined that Netherly was an
active Rolling 60’s gang member, along with two of the men arrested with Netherly in
connection with the April 27 incidents. Gaines testified generally that committing crimes
benefits a criminal street gang. He explained that property crimes generate money for the
gang that may be used to buy narcotics or weapons, or to pay for bail or attorney fees.
He also testified that, in general, it benefits a gang when a gang member commits a crime
with other gang members. According to Gaines, such crimes instill fear in victims. The
more gang members present during the crime, the less likely the victim is to fight back.
       Gaines further opined that gangs commit crimes “in broad daylight” because it
benefits the gang by creating an atmosphere of fear in the community. Such fear prevents
people in the community from calling 911 or from retaliating. He also explained that
gangs make their name in the community by “tagging” or writing graffiti in the
community, and by committing crimes. Gang members “may or may not shout out and
represent the gang.” Doing so acknowledges the gang and informs the victim of the gang

1      Although the trial court sustained defense counsel’s objection to this testimony on
the ground that it was not responsive to the question, there was no motion to strike the
testimony.

                                             3
the perpetrator is from. This allows the victim to “pass the word” about that particular
gang.
        The prosecutor presented Gaines with a hypothetical mirroring the facts of the
robbery outside of the marijuana dispensary. Gaines opined the robbery would be
committed for the benefit of the Rolling 60’s gang. He explained that the crime would
benefit the gang because gang members have to pay a “tax,” when they commit crimes,
and a certain percentage of the tax would go to the gang. The gang could then use such
funds to purchase narcotics or weapons, or for bail money and attorney fees. However,
he testified that if the robbery was of something small, the property taken might be for
the personal use of the individual who took it. He further testified that a crime committed
in broad daylight, in a well-trafficked area, would benefit the gang. Gaines explained:
“The more crimes that are committed as well as the gang members that are together when
a crime is committed, it’s going to instill that fear and intimidation within the
community.”
        Gaines opined that the statement, “ ‘we’re shutting down this shop on 60’s,’ ”
would let the victim know the gang was committing the crime. It also indicated the gang
was “claiming” the shop. This could mean the gang intended to extort a “tax” from the
business owner, including by entering the business and “tak[ing] a certain percentage of
the cash register due to fear and intimidation with no repercussions.” It could also mean
the gang was “excluding the businessman,” and letting others know that persons caught
patronizing the business would be subject to the gang “jam[ming] them up” and taking
their property. Gaines also opined the crime would have been committed in association
with members of the Rolling 60’s because it was conducted in a group with at least three
active gang members. He explained that having a group of people present would
intimidate the victim, and would give a main perpetrator “back up.” Committing a crime
with other gang members would allow the perpetrator to have a witness to the crime so as
to build his reputation, and everyone involved would get credit, regardless of his
respective role in the crime.



                                              4
       The prosecutor presented Gaines with a second hypothetical mirroring the facts of
the attempted robbery of Eagan. Gaines testified the attempted robbery would also be
committed for the benefit of the gang. He explained: “Again, it’s going to benefit the
gang due to the fact that the individual clearly made himself known as being a gang
member, stated the common oath, shutting this down on 60’s, presented the fact that he
was a gang member within the Rolling 60’s allowing the victim to know who he is and
immediately going to instill the fear by taking the cellphone and possibly whatever else
was on him. [¶] If accomplished, again, you know, the benefit of the gang is he’s paying
taxes and giving—possibly selling the phone or using it for additional crimes within a
gang. So it will benefit that way.”
       There was also evidence presented, over a defense objection, that in February
2011, Netherly told a police officer he had been at an auto wholesale location to steal
batteries from the vehicles in the parking lot. Netherly was not charged with a crime
relating to the incident.
       The jury found Netherly guilty on three counts of second degree robbery (Pen.
Code, § 211), and one count of attempted robbery (Pen. Code, §§ 211, 664). As to each
count, the jury found true the allegation that the crime was committed for the benefit of a
criminal street gang within the meaning of Penal Code section 186.22, subdivision (b).
The trial court sentenced Netherly to a total prison term of 16 years. This appeal
followed.
                                      DISCUSSION
I.     Substantial Evidence Supported the Gang Enhancement Finding on Count 2
       Netherly contends the evidence was insufficient to support a true finding on the
gang enhancement alleged as to count 2, the attempted robbery of Eagan. He asserts
there was no evidence the crime was committed for the benefit of, at the direction of, or
in association with a criminal street gang. He further argues there was insufficient
evidence that he had the specific intent to promote, further, or assist in any criminal
conduct by gang members. We disagree.



                                              5
       Under Penal Code section 186.22, subdivision (b)(1), a person convicted of a
felony committed “ ‘for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members,’ ” is properly subject to additional punishment. (People v.
Margarejo (2008) 162 Cal.App.4th 102, 106, 108.)
       “In considering a challenge to the sufficiency of the evidence to support an
enhancement, 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. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v.
Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
       Gang expert Gaines testified generally that when gangs commit crimes in “broad
daylight,” the actions benefit the gang because they create an atmosphere of fear in the
community. As a result, community members are less likely to retaliate or involve the
police for fear of retaliation. The gang expert further testified that a gang makes itself
known within a community by, in part, committing crimes within the community. This
was proper expert testimony the jury could rely on to determine whether Netherly’s
actions were for the benefit of the gang. (People v. Vang (2011) 52 Cal.4th 1038, 1044
(Vang) [subject matter of culture and habits of criminal street gangs is appropriate for
expert opinion testimony].)
       The evidence established that before the attempted robbery of Eagan, Netherly and
other gang members accosted and robbed Simpson and his two friends as they were
exiting the marijuana dispensary. Netherly told the group: “ ‘We’re shutting down this
shop on the 60’s,’ ” thus identifying the robbery as a gang crime. The gang expert

                                              6
testified the statement meant the gang was “claiming” the shop. Netherly and other gang
members had surrounded Simpson and his friends to forestall any resistance to the
robbery. Simpson knew the area was claimed by the Rolling 60’s gang; Gaines testified
there was Rolling 60’s graffiti in the area. Simpson also testified there was Rolling 60’s
graffiti in the alleys around the area, including near the marijuana dispensary. Only 30
minutes later, Netherly demanded Eagan’s phone. When Eagan refused to hand over his
phone, Netherly threatened to summon his “homeys” from across the street. The group
did, in fact, cross the street to aid Netherly, but Eagan had already run away. After both
the robbery and the attempted robbery, Netherly and his fellow gang members stayed in
the area.
       Although Netherly did not invoke the Rolling 60’s name with Eagan, the jury
could reasonably find that the brazen attempted robbery was a continuation of Netherly’s
efforts to benefit the gang by creating an atmosphere of fear and intimidation in the
neighborhood on behalf of the Rolling 60’s gang. The evidence also supported a finding
that Netherly’s attempted robbery of Eagan was for the benefit of the gang, in that it was
a way to make the gang known in the community. Although the evidence could have
been interpreted in several ways, one reasonable interpretation was that Netherly and his
fellow gang members were on this particular intersection, making the gang’s presence
known to inspire fear in the community, by robbing people in broad daylight with
impunity. Indeed, the evidence supported the prosecutor’s theory that Netherly was
projecting the image that “this is his corner. This is his territory.”2



2        The prosecutor argued both crimes were intended to gain notoriety, to control
territory, to gain respect within the gang, and because Netherly and his associates were
“repping their hood.” Thus, “they commit this crime, these crimes in broad daylight.
They do it with witnesses around and they don’t even bother to leave because in their
world, they’re in charge, right? . . . [¶] . . . [¶] Mr. Netherly didn’t so much as change his
shirt . . . or even move off of the same corner that he was on in the 30 minutes after he
robbed three people of their marijuana . . . . [¶] His conduct shows you . . . he wants
everybody there to see and to know who he is and what he did.”


                                               7
       Similarly, there was substantial evidence that Netherly had the specific intent to
promote, further, or assist in criminal conduct by gang members. The enhancement
“applies when a defendant has personally committed a gang-related felony with the
specific intent to aid members of that gang.” (Albillar, at p. 68.) As explained above,
Gaines testified that gang members commit crimes in a community to make the gang
known, and may commit crimes in a brazen manner so as to intimidate the community
and cause fear. In this case, the evidence showed Netherly and at least two other active
gang members were hanging out in the area where the crimes occurred. The area was
marked with graffiti of their gang. At least one of the gang members with Netherly had
visible gang tattoos.3 They robbed Simpson and his friends of their marijuana, invoking
the gang’s name with words suggesting their dominance over the marijuana dispensary.
       After robbing Simpson and his friends, Netherly and the other gang members
stayed near the shop. Then, Netherly attempted to rob Eagan, threatening to call over his
“homeys” when Eagan resisted. The group crossed the street after Eagan ran away.
Still, Netherly and the other gang members remained in the area. A reasonable jury could
conclude from this evidence that Netherly attempted to rob Eagan with the intent to
enhance the gang’s reputation, to demonstrate to the community that the gang controlled
that area, and to assist the gang by causing fear in the community. (People v. Livingston
(2012) 53 Cal.4th 1145, 1171-1172 (Livingston).)
       On appeal, Netherly points out that the gang expert’s opinion in response to the
hypothetical mirroring the facts of count 2 was flawed in that it appeared to conflate the
facts of the completed robbery and the attempted robbery. We agree for that reason that
the expert’s opinion in response to the hypothetical was not substantial evidence
supporting the gang enhancement on count 2. However, that was only one portion of the
expert’s testimony. The remaining opinions regarding how criminal street gangs conduct
themselves in general, the reasons why gang members commit crimes to benefit the gang,

3      The evidence established Netherly had multiple tattoos; Gaines testified several of
them were gang related. However, it is not clear from the record before us if any of those
tattoos were visible the day of the charged crimes.

                                             8
and how committing certain crimes can benefit a criminal street gang, were valid. (Vang,
supra, 52 Cal.4th at pp. 1050-1051.)
       Further, although there was no evidence Eagan knew Netherly was a Rolling 60’s
gang member, or that Netherly invoked the gang when attempting to rob him, the jury
could still find Netherly’s actions were for the benefit of the gang, and that Netherly had
the specific intent to promote, further, or assist criminal conduct by gang members.
While a perpetrator’s identification of himself as a gang member, or an invocation of the
gang’s name during the commission of the crime, is convincing evidence the crime was
gang-related, the absence of such evidence does not render the crime per se beyond the
reach of the gang enhancement. As explained above, although Netherly did not explicitly
inform Eagan that the robbery was on behalf of the gang, there was still evidence the
crime would benefit the gang, and that Netherly harbored the specific intent to promote,
further, or assist criminal conduct by gang members.
       In addition, while Netherly nominally carried out the attempted robbery on his
own, when Netherly called across the street Eagan saw that he was with a group of other
people, some of whom were in fact gang members. (See People v. Rios (2013) 222
Cal.App.4th 542, 574 [when defendant acts alone, the combination of the charged offense
and gang membership alone is insufficient to support an inference on the specific intent
prong].) Netherly crossed the street and accosted Eagan in full view of fellow gang
members, he referred to them when threatening Eagan, and they came to his assistance
when Eagan ran away. Gaines testified that gang members may commit crimes with
other gang members present to instill fear in and intimidate the victim, to have a gang
witness who can report back to the gang about the perpetrator’s crime, and to “back them
up.” The jury could reasonably apply this portion of the expert’s opinion to the facts of
this case to conclude the attempted robbery was a gang-related crime.
       People v. Livingston, supra, is instructive. In Livingston, the court considered
whether substantial evidence supported gang enhancements connected with two crimes, a
drive-by shooting and another shooting of security guards three months later. With
respect to the drive-by shooting, the evidence showed the defendant, a gang member, was

                                             9
in his car with two other members of the same gang when he fired the shots. The drive-
by victim and two others with him were members of a rival gang. They were wearing the
rival gang’s colors. The court found the evidence supported true findings on both prongs
of the enhancement. (Livingston, supra, 53 Cal.4th at p. 1171.) The court further found
the evidence supported a finding that a subsequent shooting of security guards at an
apartment complex was gang related, even though the guards were not gang members.
The court cited evidence that the defendant’s membership was a “major part of his life, as
attested to by the many Crips gang tattoos he bore, and the fact that he had already
committed a driveby shooting on behalf of the gang.” (Ibid.) The defendant committed
the shooting with a fellow gang member who was also with him at the drive-by shooting.
The security guards had identified the defendant’s car to the police after the drive-by
shooting, and there was evidence the defendant was angry at least at one guard for
helping to have the defendant’s car impounded. Some of the guards on duty on the night
of the shooting had also been on duty on the night of the earlier drive-by shooting.
         Further, and particularly relevant to this case: “Evidence showed that the Park
Village Crips considered the New Wilmington Arms apartment complex—the complex
the security guards were guarding—to be their territory. The complex was covered with
gang graffiti. Detective Richardson testified that criminal street gangs have the common
goal to ‘terrorize the public’ by committing violent crimes. A reasonable jury could
conclude from all this evidence that defendant shot the security guards to enhance the
Park Village Crips’s reputation, to show that the gang rather than the security guards
were in charge of the apartment complex, or to retaliate for the guards’ role in identifying
his car in the earlier gang-related driveby shooting.” (Livingston, supra, 53 Cal.4th at p.
1172.)
         Likewise here, even if Eagan was unaware of the gang connection, a jury could
reasonably conclude the entire set of circumstances indicated the attempted robbery of
Eagan was gang related and gang motivated. These circumstances included the presence
of multiple gang members; Netherly’s commission of a gang-related robbery outside of
the marijuana dispensary with words reinforcing the gang’s control of the area; gang

                                             10
graffiti in the area; Netherly’s gang-related tattoos and the tattoos of those with him; the
fact that Netherly and other gang members stayed at the same location after robbing
Simpson and his friends; and Netherly’s threats to bring his group over to assist him.
A reasonable jury could conclude Netherly attempted to rob Eagan to enhance his gang’s
reputation, or to show that the gang controlled the neighborhood. We conclude
substantial evidence supported the jury’s true finding on the gang enhancement
associated with count 2.
II.    Any Error in Admitting Evidence of Netherly’s Prior Uncharged Conduct
       was Harmless
       Netherly argues the trial court erred in admitting evidence of his prior uncharged
criminal conduct. We need not decide the merits of this issue. Even if the court erred, it
is apparent the error was harmless under any standard.
       As noted above, a law enforcement officer testified that in February 2011, after
being advised of his Miranda rights, Netherly said he had been at an auto wholesaler
location, intending to steal batteries from the vehicles in the parking lot. He was not
charged with a crime relating to the incident. No other details regarding the incident
were provided at trial. Before trial, defense counsel objected to the evidence. The
prosecutor argued it was admissible to prove intent. The trial court overruled the defense
objection, concluding the evidence was admissible to prove intent, and it would not be
unduly prejudicial.
       Under Evidence Code section 1101, “[e]vidence of other crimes is not admissible
merely to show criminal propensity, but it may be admitted if relevant to show a material
fact such as intent. [Citations.] To be admissible, there must be some degree of
similarity between the charged crime and the other crime, but the degree of similarity
depends on the purpose for which the evidence was presented. The least degree of
similarity is needed when . . . the evidence is offered to prove intent.” (People v. Jones
(2011) 51 Cal.4th 346, 371 (Jones).) Evidence of other crimes that is admissible under
Evidence Code section 1101 may still be inadmissible under Evidence Code section 352.



                                             11
       Even if the trial court erred in concluding the evidence was admissible in this case,
we would not find the error reversible. The evidence against Netherly on the substantive
offenses charged was overwhelming. Two victims testified Netherly robbed and
attempted to rob them. The crimes were committed in broad daylight; both victims were
in close proximity to Netherly. Both victims first identified Netherly to law enforcement
at or near the scene of the crimes, not long after the incidents. These witnesses were
unequivocal in their accounts of Netherly’s conduct and his statements to them. There
could be no doubt about Netherly’s intent since he demanded that the victims hand over
their property, and expressly or implicitly indicated violence would ensue if the victims
refused. Netherly’s invocation of his gang’s name in carrying out the first robbery was a
clear indication that the crime was gang related and gang motivated.
       Although the evidence regarding the gang enhancement on count 2 may have been
relatively weaker, the prior uncharged conduct was completely unrelated to any gang
issue. The evidence that Netherly intended to steal car batteries from an auto wholesale
lot did not suggest he had a propensity to engage in a gang-related crime. Moreover, the
jury was instructed that they were only to consider the prior conduct evidence for the
limited purpose of deciding whether Netherly acted with the necessary intent for robbery.
The jury was instructed not to consider the evidence for any other purpose. (People v.
Hajek (2014) 58 Cal.4th 1144, 1216 [presumption that jurors understand and follow
instructions].)
       The evidence of uncharged conduct was extremely brief, devoid of details, and far
from inflammatory. There is no reason to believe the jury may have been tempted to
convict Netherly on the charged crimes to punish him for his prior intention to steal car
batteries from an auto wholesaler. It is not reasonably probable that a result more
favorable to Netherly would have been reached had the court excluded evidence of his
prior uncharged conduct. (Jones, supra, 51 Cal.4th at p. 372.) Further, even if a more
stringent standard of error were appropriate, we would conclude it is beyond a reasonable
doubt that the admission of the evidence did not contribute to the jury’s verdict.



                                            12
                                 DISPOSITION
     The judgment is affirmed.


                                               BIGELOW, P.J.
We concur:


                  FLIER, J.




                  GRIMES, J.




                                     13
