Filed 3/26/15 P. v. Netherly CA2/8 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION EIGHT 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

CHARLES WAYNE NETHERLY, 

 Defendant and Appellant. 

 B254670 

 (Los Angeles County 

 Super. Ct. No. BA410664) 

 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. 

______________________________ 
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 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 
3

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. 
4

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. 
5

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. 
6

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 
7

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.” 
8

 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. 
9

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 
10

in his car with two other members of the same gang when he fired the shots. The driveby 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 
11

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. 
12

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. 
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DISPOSITION 

The judgment is affirmed. 

 BIGELOW, P.J. 

We concur: 

 FLIER, J. 

GRIMES, J.