People v. Netherly CA2/8 ( 2015 )


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  • 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
    

Document Info

Docket Number: B254670

Filed Date: 3/26/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021