People v. Hamilton CA2/6

Filed 3/24/21 P. v. Hamilton CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B256760
(Super. Ct. No. BA381749-01, -03)
Plaintiff and Respondent, (Los Angeles County)

v. ORDER MODIFYING OPINION
AND DENYING REHEARING
RICKY HAMILTON et al., [CHANGE IN JUDGMENT]

Defendants and Appellants.

THE COURT:
It is ordered that the opinion filed herein on February 24,
2021, be modified as follows:
1. On page 2, the third full paragraph beginning “We reissue” is
deleted, and the following paragraph is inserted in its place:
“We reissue our opinion filed April 27, 2016, and omit
all discussion of and reference to Johnson’s
contentions on appeal. No changes are made as to
Hamilton, with the exception of the following
discussion and amendment to the disposition.
Because Hamilton has an arguable claim that, with
 the reissuance of this opinion, he is entitled to the
benefit of Penal Code [FN 1] section 12022.53,
subdivision (h), we change the disposition of his
appeal to remand to the trial court for the limited
purpose of allowing that court to decide whether to
exercise its sentencing discretion under section
12022.53, subdivision (h), as amended by Senate Bill
No. 620. (Stats. 2017, ch. 682, § 2.) Hamilton’s
judgment of conviction is affirmed in all other
respects.”
2. On page 3, first line, “Pen. Code” is deleted so that the
statutes within the parenthetical now begin: “(§§ 664, 187, subd.
(a)…).” Footnote 1 at the end of the parenthetical clause is
moved to page 2, as noted above, using the same language: “All
further statutory references are to the Penal Code unless
otherwise stated.”
3. On page 11, the text under the heading “DISPOSITION” is
deleted. The following paragraph is inserted in its place:
“We vacate Ricky Hamilton’s sentence and remand
the matter for the limited purpose of allowing the
trial court to decide whether to exercise its
sentencing discretion under section 12022.53,
subdivision (h), as amended by Senate Bill No. 620.
Hamilton’s judgment of conviction is affirmed in all
other respects. We dismiss the appeal as moot as to
appellant Rondalyn Johnson.”

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 This modification changes the judgment. Appellant Ricky
Hamilton’s petition for rehearing is denied.

___________________________________________________________
GILBERT, P. J. YEGAN, J. PERREN J.

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Filed 2/24/21 P. v. Hamilton CA2/6 (unmodified opinion)
Opinion following rehearing
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 SIX

THE PEOPLE, 2d Crim. No. B256760
(Super. Ct. No. BA381749-01, -03)
Plaintiff and Respondent, (Los Angeles County)

v. OPINION FOLLOWING
REHEARING
RICKY HAMILTON et al.,

Defendants and Appellants.

On April 27, 2016, this court issued an opinion affirming
the judgments of conviction of appellants Ricky Hamilton and
Rondalyn Johnson. On August 10, 2016, the California Supreme
Court granted Johnson’s petition for review and denied
Hamilton’s petition for review. (People v. Hamilton et al., No.
S234559.) On April 10, 2019, the California Supreme Court
transferred this matter to our court with directions to vacate our
decision (filed April 27, 2016) and to “reconsider the cause in light
of Senate Bill No. 1437 (Stats. 2018, ch. 1015).” On August 21,
2019, we issued a second opinion reaching the same result as our
original opinion. Then, on September 19, 2019, we granted
appellant Rondalyn S. Johnson’s petition for rehearing.
While this appeal was under submission, on October 30,
2019, in a habeas matter filed by Johnson, the California
Supreme Court issued an order for the Department of Corrections
and Rehabilitation to show cause before the Los Angeles County
Superior Court whether Johnson was entitled to a juvenile
fitness hearing under Welfare and Institutions Code section 707,
subdivision (a), based on new documentation that Johnson was a
minor at the time she committed the underlying offenses. (In re
Johnson, No. S253372.) On December 24, 2019, this court
vacated submission of Johnson’s appeal pending the superior
court’s resolution of her request for a juvenile fitness hearing.
Thereafter, the Los Angeles County Superior Court
transferred Johnson’s case to juvenile court and adjudicated her
as a juvenile for the offenses at issue in this appeal. On January
8, 2021, in Los Angeles County Superior Court Case No.
YJ40698, Johnson admitted to one count of attempted murder
and one count of burglary. She was declared a ward of the court
under Welfare and Institutions Code section 602, and she was
ordered home on probation for six months. Johnson and the
People agree that Johnson’s admissions to the allegations in the
juvenile court petition make this appeal moot. Accordingly, we
dismiss Johnson’s appeal as moot.
We reissue our opinion filed April 27, 2016, without any
changes as to Hamilton, and omit all discussion of and reference
to Johnson’s contentions on appeal.
Ricky Hamilton appeals judgment after conviction by jury
of first degree willful, deliberate, and premeditated attempted
murder of Wassan Flores; first degree burglary; and home

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invasion robbery. (Pen. Code, §§ 664, 187, subd. (a), 189, 459,
211.)1 The jury found true allegations that Hamilton committed
each offense for the benefit of a street gang. (§ 186.22, subd.
(b)(1)(C).) The jury also found true allegations that Hamilton, in
the commission of the attempted murder and the robbery, used
and discharged a handgun causing great bodily injury.
(§§ 12022.53, subds. (b), (c) & (d).) The trial court sentenced
Hamilton to 40 years to life in prison. We affirm.
BACKGROUND
The Black P Stones gang is a “Bloods” gang. The Rollin
30’s gang (also known as the Harlem 30’s) is a “Crips” gang. The
gangs are rivals.
Hamilton is a member of the Black P Stones gang. Flores
(the victim) is an associate of the Rollin 30’s. In 2011, Hamilton
was dating Johnson. Flores was a friend of Johnson.
Flores lived in an apartment in Black P Stones gang
territory with his mother and sister. In February 2011, Hamilton
and another man came to the apartment door, and Hamilton
asked Flores if he was “from Harlem.” When a security guard
appeared, Hamilton and the other man left. Flores felt
disrespected.
A couple of days later, Flores saw Hamilton on the street
and challenged him to a fight. Hamilton ran away. Flores
relayed this information to Johnson.
One night about two weeks later, Johnson and Flores spent
the evening together at Flores’s apartment. Flores’s mother was
at work and his sister was asleep. Johnson unlocked the sliding
door when Flores was not looking.

1
All further statutory references are to the Penal Code unless
otherwise stated.

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 When Johnson left, Hamilton and two masked men entered
through the sliding door. Hamilton had a handgun. Flores saw
his face and identified him at trial.
The men kicked and beat Flores. Flores curled up in a fetal
position. Hamilton hit Flores in the head with the gun,
fracturing his skull. Flores ran toward his bedroom. Hamilton
fired five shots at him, hitting Flores’s hip. Hamilton took
Flores’s laptop and cellphone.
Johnson’s text messages from that night showed that she
helped plan the robbery with Hamilton’s friend, Darrin Collins.
(Collins was tried separately.) The messages include this
exchange: Johnson: “Hold on he barely drinkin im finna make
him chugg sum shyt. [I]ma text u when to come.” Collins: “20
past we bout2 kum up nk there.” Johnson: “No wait mah niggah
I don’t wanna be here. . . . Do yall got some shyt to put over yall
face n shyt?” Collins: “Iz da back open.” Johnson: “Yeah it
iz . . . . Im text u soon as I walk out da gate.”
Afterward, Johnson tried to convince Flores that Hamilton
was not involved. In a pretext telephone call arranged by the
police, Flores called Johnson to talk about the attack. Johnson
told Flores, “[I]t couldn’t have been [Hamilton]”; “[Hamilton]
doesn’t even have a gun”; and “some other guys came over . . .
they took [Hamilton’s] little brother’s gun.” The jury heard a
recording of the call. The trial court instructed them to consider
it only against Johnson and not to consider the truth of the
matters asserted.
Johnson’s counsel conceded that Johnson planned the
burglary, but argued Johnson was not responsible for the
shooting because she could not foresee it. Hamilton’s counsel

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argued that Hamilton was not involved in the burglary or the
shooting and that Flores was a jealous and unreliable witness.
A Los Angeles police officer testified as an expert about the
Rollin 30’s gang. He testified that Flores was affiliated with the
gang. Another officer testified about the Black P Stones gang.
He testified Hamilton was a member. In response to a
hypothetical question, the officer opined that a shooting in the
circumstances of this case would be for the benefit of the Black P
Stones gang, committed to restore respect to the gang after a
member ran away from a fight. He said that the primary
activities of the Black P Stones gang include attempted murders,
murders, and home invasion robberies. He testified that a Black
P Stones member was convicted of murder in 2008 and that two
other members were convicted of attempted murder in 2011.
DISCUSSION
Instructions - Assault with a Firearm as Lesser Included Offense
to Attempted Murder
The trial court did not have a sua sponte duty to instruct on
assault with a firearm as a lesser included offense of attempted
murder although the accusatory pleading alleged firearm
enhancements. “[E]nhancements may not be considered as part
of an accusatory pleading for purposes of identifying lesser
included offenses.” (People v. Sloan (2007) 42 Cal.4th 110, 114
[applying multiple conviction rule], citing People v. Wolcott (1983)
34 Cal.3d 92, 96, 100-101 [no sua sponte duty to instruct on
assault with a deadly weapon as a lesser included offense of
robbery, notwithstanding firearm use enhancement].)
A trial court has a sua sponte duty to instruct on all
necessarily included offenses supported by the evidence. (People
v. Breverman (1998) 19 Cal.4th 142, 148-149.) A lesser offense is

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included in a greater offense if either the statutory elements of
the greater offense or the facts actually alleged in the accusatory
pleading include all the elements of the lesser offense, such that
the greater cannot be committed without also committing the
lesser. (People v. Smith (2013) 57 Cal.4th 232, 244.)
Assault with a firearm is not a lesser included offense of
attempted murder. (People v. Parks (2004) 118 Cal.App.4th 1, 6.)
And assault with a firearm does not become a lesser included
offense of attempted murder when the accusatory pleading
includes firearm allegations. (People v. Wolcott, supra, 34 Cal.3d
92, 96, 100; People v. Alarcon (2012) 210 Cal.App.4th 432, 436-
439 [assault with a firearm not a lesser offense of attempted
murder with firearm enhancement]; People v. Bragg (2008) 161
Cal.App.4th 1385, 1398 [same].)
Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny
do not undermine Wolcott’s holding. Apprendi established that
an enhancement allegation is the functional equivalent of a
greater crime for purposes that do not encompass the accusatory
pleading test. (People v. Alarcon, supra, 210 Cal.App.4th 432,
437.) Apprendi does not require us to “treat penalty allegations
as if they were actual elements of offenses for all purposes under
state law.” (Porter v. Superior Court (2009) 47 Cal.4th 125, 137
[enhancements should not be considered in defining necessarily
included offenses for double jeopardy protection, Apprendi
notwithstanding]; People v. Izaguirre (2007) 42 Cal.4th 126, 128
[enhancement allegations may not be considered in defining
necessarily included offenses for the multiple conviction rule,
Apprendi notwithstanding]; People v. Sloan, supra, 42 Cal.4th
110, 122-123 [same].)

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 Sufficient Evidence of Intent and Premeditation
Sufficient evidence supports the jury’s finding that
Hamilton intentionally attempted to kill Flores and acted
willfully, with premeditation and deliberation.
Hamilton was prepared for violence when he entered
Flores’s apartment armed with a handgun. He demonstrated his
intent to kill when he fired five shots at Flores, “ ‘ “in a manner
that could have inflicted a mortal wound had the bullet been on
target.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 741 [firing at
close range can demonstrate intent to kill].) There was strong
evidence of motive and planning. (People v. Perez (1992) 2
Cal.4th 1117, 1125 [evidence of planning, motive, and method can
support a finding of premeditation and deliberation].) One month
before Hamilton shot Flores, he confronted him about his
association with a rival gang. Hamilton embarrassed himself
when he ran away from Flores’s subsequent challenge to fight. A
rational jury could conclude that Hamilton was motivated to kill
Flores in order to restore respect for himself and his gang.
Johnson’s text messages and her unlocking the sliding glass door
for Hamilton’s group to enter the apartment demonstrate
planning.
Hamilton argues that if he intended to kill Flores, he would
have executed Flores immediately, instead of beating him first
and waiting until Flores ran toward his room to shoot him. The
jury rejected this theory of the evidence, and substantial evidence
supports its decision. (People v. Johnson (1980) 26 Cal.3d 557,
578 [we review the record in the light most favorable to the
judgment]; People v. Kraft (2000) 23 Cal.4th 978, 1053 [we
presume in support of the judgment the existence of every fact
the jury might reasonably deduce from the evidence].)

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 Gang Expert Testimony on Ultimate Fact
The trial court did not abuse its discretion when it allowed
the gang expert to testify that a member of the Black P Stones
gang would, hypothetically, “shoot to kill” in the circumstances of
this case.
Expert opinion on a specific defendant’s state of mind is not
admissible where it would invade the province of the jury.
(People v. Killebrew (2002) 103 Cal.App.4th 644, 647, 658, as
limited by People v. Vang (2011) 52 Cal.4th 1038, 1047-1048.)
The trial court so instructed the jury early in the testimony of the
Black P Stones gang expert. The court told the jury, “The
witness is not allowed to testify about what any actual person
may have thought or intended. He can simply give an opinion
based on the hypothetical.” The court explained, “It is up to you
to decide whether the facts have been proved or whether the
basis for the opinion has any validity.”
When the expert came close to overstepping this boundary,
the trial court struck the testimony and admonished him. The
expert said, in response to a hypothetical, “[Y]ou have the . . .
victim[] get up and try to attempt to run . . . . [Y]ou have the . . .
Black P Stones member[] taking it to a whole other level, not only
attempting to shoot or injure but, in my opinion, shoot to kill.”
When defense counsel objected, the trial court struck the phrase,
“shoot to kill,” and admonished the expert, “Please don’t opine on
what anybody had intended or thought.”
Later, the expert testified, “When you shoot an individual,
. . . you’re going to actually elevate your status in a matter of
seconds . . . . [I]f you are willing to take someone else’s life or
shoot at someone . . . not to injure them, you’re going to shoot at
them to take their life, that’s going to elevate the status.” This

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was not an opinion on Hamilton’s state of mind. It was an
explanation that a gang member’s status is quickly elevated if
they shoot to kill, based on a hypothetical. Whether Hamilton
shot to kill was a question left for the jury to decide. An expert
may be questioned through the use of hypothetical questions
regarding hypothetical persons. (People v. Vang, supra, 52
Cal.4th 1038, 1047.) The trial court properly overruled defense
counsel’s objection to the testimony.
Prosecutorial Misconduct
The trial court did not abuse its discretion when it denied
Hamilton’s motion for mistrial based on prosecutorial
misconduct. (People v. Alvarez (1996) 14 Cal.4th 155, 213 [review
for abuse of discretion].) Hamilton contends the prosecutor
argued facts outside the record when she said Johnson “knows
[Hamilton] has access to the guns” and when she suggested
Hamilton received a “Crip Killer” tattoo after he shot Flores. The
prosecutor’s argument was fairly based on the evidence, did not
render the trial fundamentally unfair, and did not involve
deceptive or reprehensible methods of persuasion. (People v.
Morales (2001) 25 Cal.4th 34, 44.)
To prove Johnson’s state of mind, the prosecutor referred to
the pretextual telephone call in which Johnson said, “[I]t couldn’t
have been [Hamilton]”; “[Hamilton] doesn’t even have a gun”; and
“some other guys came over . . . . [T]hey took [Hamilton’s] little
brother’s gun.” The prosecutor argued, “[W]hat else does Miss
Johnson know? You know, based on her conversation with
Wassan Flores, where she’s trying to convince him, ‘Oh, those
guns Ricky has, he doesn’t have them anymore.’ In terms of what
she knows, she knows he has access to the guns.” The argument
was consistent with the trial court’s instruction that the jury

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should only consider the telephone call against Johnson and
could not consider any statement by Johnson against Hamilton.
When Hamilton’s counsel objected to the argument, the trial
court reminded the jury, “You heard the evidence, it’s up to you to
decide what’s in the evidence.” There was no misconduct.
The prosecutor did not commit misconduct when she
suggested that Hamilton received a “Crip Killer” tattoo after he
shot Flores. Field identification cards for Hamilton’s multiple
contacts with law enforcement before the shooting did not note a
“C.K.” tattoo, and the gang expert saw none in 2008. At trial,
Hamilton had a “C.K.” tattoo on his calves. The expert testified
that “C.K.” means “Crip Killer.” The jury could fairly infer that
Hamilton received the tattoo after he shot Flores, an associate of
a Crips gang. The prosecutor argued, “[I]f this is just about
jealousy and has nothing to do with Ricky Hamilton’s affiliation
with the Black P Stones and with the fact that he thought
[Flores] was affiliated with the Crips, then why is it that Ricky
Hamilton happens to get a tattoo that says . . . C.K.?” and “Why
does he have a tattoo that says ‘Crip Killer,’ that wasn’t there any
of the other times that he was stopped and had contact with any
of the officers that you heard about in 2008?” The argument was
supported by the evidence.
Conflict of Interest
After the verdict and before sentencing, Hamilton’s counsel
moved to withdraw based on a conflict of interest. After an in
camera hearing, the trial court granted the motion. Hamilton
asks us to independently review the sealed transcript to
determine if the conflict existed during trial. (Cal. Rules of
Court, rule 8.45(c)(1)(D), (c)(2).) We have reviewed the transcript
and are satisfied that the conflict arose after trial.

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 DISPOSITION
We affirm the judgment as to appellant Ricky Hamilton.
We dismiss the appeal as moot as to appellant Rondalyn
Johnson.
NOT TO BE PUBLISHED.

GILBERT, P. J.
We concur:

YEGAN, J.

PERREN, J.

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 Anne H. Egerton, Judge

Superior Court County of Los Angeles

______________________________

Patricia J. Ulibarri, under appointment by the Court of
Appeal, for Defendant and Appellant Ricky Hamilton.
John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant Rondalyn S. Johnson.
Xavier Becerra, Kamala D. Harris, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Margaret E. Maxwell,
William H. Shin, Amanda V. Lopez, Deputy Attorneys General,
for Plaintiff and Respondent.

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