Filed 3/26/15 P. v. Netherly CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

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 ap pointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb, Jonathan J. Kline and Garret A. Gorlitsky, De puty Attorneys Genera l, for Plaintiff and Respondent.

________________ ______________2 A jury found defendant Charles Wayne Ne therly guilty of three counts of second degree robbery and one count of attempted seco nd degree robbery. The jury found true gang enhancements alleged as to each count. On appeal, Netherly contends there was insufficient evidence to suppor t the true finding on the gang enhancement as to count 2 (attempted robbery). Netherly further argues the trial court e rred in admitting evidence of his prior uncharged criminal conduct. We affirm the judgment.

FACTUAL AND PROCED URAL BACKGROUND Around 4:00 p.m. on Ap ril 27, 2013, Bryan Simps on and two friends, Brandon White and Deonce Mosley, each purchased one ounce of mariju ana at a dispen sary in Los Angeles. As they left the shop, Netherly and a group of men were standing outside. Netherly and one other man approached. Neth erly 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. Ot her 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 ha nd in White’s pocket; White rele nted 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 mar ijuana, then they three left. At around 4:30 p.m. that same afte rnoon, Joseph Eagan was waiting for a bus

across the street from the mar ijuana dispensary. He saw a group of men outside a shop

across the street from the bus st op. Netherly called across th e 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 call3 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 lo oked 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 mo ther called the police after they spotted Netherly and four or fi ve other people on the next bloc k. 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 op ined that Netherly was an active Rolling 60’s gang membe r, along with two of the men arrested with Netherly in connection with the April 27 inci dents. Gaines testified gene rally that committing crimes benefits a criminal street gang. He explaine d that property crimes generate money for the gang that may be used to buy narcotics or we apons, or to pay for ba il or attorney fees. He also testified that, in general, it benef its a gang when a gang member commits a crime with other gang members. Acco rding to Gaines, such crimes instill fear in victims. The more gang members present during the crime, the less li kely 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 wr iting graffiti in the community, and by committing crimes. Gang members “may or may not shout out and represent the gang.” Doing so acknowledges th e gang and informs the victim of the gang

1 Although the trial court sustained defens e 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 th e word” about that particular

gang. The prosecutor presented Gaines with a hypothetical mirroring the facts of the robbery outside of the mariju ana dispensary. Gaines opined the robbery would be

committed for the benefit of th e Rolling 60’s gang. He expl ained 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 some thing 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-tr afficked area, would benefit the gang. Gaines explained:

“The more crimes that are committed as well as the gang members th at are together when a crime is committed, it’s going to ins till that fear and intimidation within the community.” Gaines opined that the st atement, “ ‘we’re shutting down this sh op on 60’s,’ ” would let the victim know the ga ng was committing the crime. It also indicated the gang was “claiming” the shop. This could mean th e gang intended to ex tort a “tax” from the business owner, including by entering the busi ness and “tak[ing] a certain percentage of the cash register due to fear and intimidation w ith no repercussions.” It could also mean the gang was “excluding the businessman,” a nd 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 crim e would have been co mmitted 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 woul d give a main perpetrator “b ack up.” Committing a crime with other gang members would allow the perpet rator to have a witne ss to the crime so as to build his reputation, and everyone invo lved 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 te stified the attempted robbery would also be committed for the benefit of the gang. He ex plained: “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 vi ctim to know who he is and immediately going to instill the fear by taking the cellphone and po ssibly whatever else was on him. [¶] If accomplishe d, 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 pr esented, over a defense objection, that in February 2011, Netherly told a police o fficer he had been at an auto wholesale location to steal batteries from the vehicles in the parking lo t. Netherly was not charged with a crime relating to the incident. The jury found Netherly guilty on three counts of s econd degree robbery (Pen. Code, § 211), and one count of attempted robb ery (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 th e meaning of Penal Code section 186.22, subdivision (b). The trial court sentenced Netherly to a tota l prison term of 16 years. This appeal

followed.

DISCUSSION I. Substantial Evidence Supported th e Gang Enhancement Finding on Count 2 Netherly contends the evid ence was insufficien t to support a true finding on the gang enhancement alleged as to count 2, th e 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 crimin al street gang. He furthe r argues there was insufficient evidence that he had the specific intent to pr omote, 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 suffici ency of the eviden ce to support an enhancement, we review the en tire record in the light most favorable to the judgment to

determine whether it contains substantial evid ence—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 reas onable 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 re asonably justify the trie r of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary find ing. [Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a w itness’s credibility.’ [Citation.]” ( People v.

Albillar (2010) 51 Cal. 4th 47, 59-60 ( Albillar ).) Gang expert Gaines testified generally that when gangs commi t crimes in “broad daylight,” the actions benefit the gang becaus e they create an atmos phere of fear in the community. As a result, comm unity members are less likely to retaliate or involve the police for fear of retaliation. The gang expe rt further testified that a gang makes itself

known within a communi ty by, in part, committing crimes within the co mmunity. 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 disp ensary. Netherly told the group: “ ‘We’re shutting down this shop on the 60’s,’ ” thus identifying the ro bbery as a gang crime. The gang expert7 testified the statement meant the gang was “clai ming” the shop. Netherly and other gang members had surrounded Simpso n and his friends to forest all any resistance to the robbery. Simpson knew the ar ea 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, includi ng near the marijuana dispensary. Only 30 minutes later, Netherly demanded Eagan’s phon e. 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 Nether ly, but Eagan had already run away. After both the robbery and the attempted robbery, Netherly and his fe llow gang member s stayed in

the area. Although Netherly did not in voke the Rolling 60’s name with Eagan, the jury could reasonably find that the brazen attempte d robbery was a conti nuation of Netherly’s efforts to benefit the gang by creating an at mosphere of fear and intimidation in the neighborhood on behalf of the Rolling 60’s gang. The eviden ce also supported a finding that Netherly’s attempted robbery of Eagan wa s for the benefit of the gang, in that it was a way to make the gang known in the community. Althou gh the evidence could have been interpreted in several ways, one reasona ble interpretation was that Netherly and his fellow gang members were on this particular intersection, making the gang’s presence known to inspire fear in th e community, by robbing peopl e in broad daylight with impunity. Indeed, the evidence supported the prosecutor’s theory that Netherly was projecting the image that “this is hi s corner. This is his territory.” 2

2 The prosecutor argued both crimes were intended to gain no toriety, to control territory, to gain respect with in the gang, and because Nether ly 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 le ave 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 co mmitted a gang-relate d felony with the specific intent to aid members of that gang.” ( Albillar , at p. 68.) As explained above, Gaines testified that gang members commit cr imes in a community to make the gang known, and may commit crimes in a brazen manner so as to intim idate 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 leas t one of the gang members with Netherly had visible gang tattoos. 3 They robbed Simpson and his fri ends of their marijuana, invoking the gang’s name with words suggesting their dominance over th e 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 ga ng members remained in the area. A reasonable jury could

conclude from this evidence that Netherly attempted to r ob Eagan with the intent to enhance the gang’s reputation, to demonstrat e 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 h ypothetical 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 mu ltiple tattoos; Gaines testified several of them were gang related. However, it is not cl ear from the record before us if any of those tattoos were visible the day of the charged crimes.9 and how committing certain crim es can benefit a criminal street gang, were valid. ( Vang,

supra , 52 Cal.4th at pp. 1050-1051.) Further, although there was no evidence Ea gan 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 himsel f as a gang member, or an invocation of the gang’s name during the commission of the cr ime, is convincing evidence the crime was gang-related, the absence of su ch evidence does not render the crime per se beyond the reach of the gang enhancement. As explaine d above, although Nether ly did not explicitly inform Eagan that the robber y was on behalf of the gang, there wa s 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 ca rried out the attempted robbery on his own, when Netherly called acro ss 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 defe ndant acts alone, the combina tion of the charged offense and gang membership alone is insufficient to support an infe rence on the specific intent prong].) Netherly crossed the street and accosted Eagan in full view of fellow gang members, he referred to them when threaten ing 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 perpetrato r’s crime, and to “back them up.” The jury could reasonably apply this porti on 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 se curity guards three months later. With respect to the drive-by shooti ng, the evidence showed the defendant, a gang member, was10 in his car with two other memb ers of the same gang when he fired the shots. The driveby victim and two others with him were members of a rival ga ng. They were wearing the rival gang’s colors. The court found the ev idence 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 subs equent shooting of security guards at an apartment complex was gang related, even th ough the guards were not gang members.

The court cited evidence that th e 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 fello w gang member who was also with him at the drive-by shooting. The security guards had identified the defe ndant’s car to the police after the drive-by shooting, and there was evidence the defend ant was angry at least at one guard for helping to have the defendant’s car impounde d. 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 Wilmingt on Arms apartment complex—the complex the security guards were guard ing—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 eviden ce 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 apartmen t complex, or to retaliate for the guards’ role in identifying his car in the earlier gang-re lated 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 in cluded the presence of multiple gang members; Ne therly’s commission of a gang -related robbery outside of the marijuana dispensary with words reinforcing the gang’s control of the area; gang11 graffiti in the area; Netherly’s gang-related ta ttoos 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 a ttempted to rob Eagan to enhance his gang’s reputation, or to show that the gang co ntrolled the neighborhood. We conclude substantial evidence supported the jury’s true finding on the gang enhancement

associated with count 2. II. Any Error in Admitti ng 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 enfor cement 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, de fense counsel objected to the evidence. The prosecutor argued it was admissible to prove in tent. The trial court overruled the defense objection, concluding the evidence was admissi ble to prove intent, and it would not be unduly prejudicial. Under Evidence Code section 1101, “[e]vide nce of other crimes is not admissible merely to show criminal prope nsity, 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 evid ence was presented. The least degree of similarity is needed when . . . the evidence is offe red 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 ma y still be inadmissible unde r Evidence Code section 352.12 Even if the trial court erred in concluding the evidence was admiss ible in this case,

we would not find the error reversible. The ev idence against Netherly on the substantive offenses charged was overwhelming. Tw o victims testified Netherly robbed and attempted to rob them. The crimes were co mmitted in broad dayli ght; both victims were in close proximity to Netherly . Both victims first identifie d Netherly to law enforcement at or near the scene of the crimes, not long after the incidents. These witnesses were unequivocal in their ac counts 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 i ndicated 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 evid ence regarding the gang enhan cement on count 2 may have been relatively weaker, the prior uncharged conduct was completely unrelated to any gang

issue. The evidence that Neth erly intended to steal car batte ries from an auto wholesale lot did not suggest he had a pr opensity to engage in a gang -related crime. Moreover, the jury was instructed that they were only to consider the prior co nduct evidence for the limited purpose of deciding whether Netherly acte d with the necessary in tent for robbery. The jury was instructed no t to consider the evidence for any other purpose. ( People v. Hajek (2014) 58 Cal.4th 1144, 1216 [presump tion that jurors understand and follow instructions].) The evidence of uncharged c onduct 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 charge d crimes to punish him for hi s 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 reach ed 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 admissi on of the evidence did not contri bute to the ju ry’s verdict.13 DISPOSITION The judgment is affirmed.

BIGELOW, P.J.

We concur:

FLIER, J.

GRIMES, J.