Filed 4/20/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B319268
(Super. Ct. No. BA381749)
Plaintiff and Respondent, (Los Angeles County)
v.
RICKY HAMILTON,
Defendant and Appellant.
Ricky Hamilton was sentenced to 15 years to life for
attempted murder (Pen. Code,1 §§ 664, 187, subd. (a)) and 25
years to life for use of a firearm in the commission of the offense
(§ 186.22, subd. (b)(1)) pursuant to section 654.
We conclude the Governor’s commutation of Hamilton’s
sentence to 15 years to life made a remand for the trial court to
exercise its discretion under section 12022.53, subdivision (h),
moot. We also conclude that amendments to section 186.22 do
All references are to the Penal Code unless otherwise
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indicated.
not require a remand because under the evidence produced at
trial any reasonable juror would find the gang enhancement true
under the amended version of section 186.22. Finally, Hamilton
cannot show prejudice from the failure to bifurcate trial on the
gang enhancement under section 1109 as amended.
FACTS
Because this is the third time this case has come before this
court, a brief statement of facts will be sufficient.
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. Wassan
Flores (the victim) is an associate of the Rollin 30’s gang. In
2011, Hamilton was dating Rondalyn 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.
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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.
DISCUSSION
I. Section 12022.53
Hamilton contends the trial court erred in failing to
exercise its discretion in whether to strike the firearm
enhancement under section 12022.53.
At the time Hamilton was originally sentenced, a 25 years
to life sentence for use of a firearm was mandatory, pursuant to
section 12022.53, subdivision (d). While the judgment in
Hamilton’s case was not yet final, the Legislature amended
section 12022.53 to give the trial court discretion to strike or
dismiss the enhancement in the interest of justice pursuant to
section 1385. (§ 12022.53, subdivision (h); Assem. Bill No. 1171,
Stats. 2021, ch. 626, § 65, eff. Jan. 1, 2022.) We remanded the
matter to the trial court to exercise its discretion.
On the date set for resentencing, Hamilton presented the
court with a commutation of sentence signed by the Governor,
reducing Hamilton’s sentence from 40 years to life to 15 years to
life. The trial court continued the sentencing to confirm the
authenticity of the commutation of sentence.
At the rescheduled hearing the trial court confirmed the
commutation of sentence and found our direction to exercise its
discretion under section 12022.53, subdivision (h), was moot. The
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court ordered the case off calendar without exercising discretion.
Hamilton did not object. Instead, he asked the court to reduce
his sentence to a 15 year determinate term. The court refused on
the ground that it would be an unauthorized sentence.
Had the trial court exercised its discretion to strike or
dismiss the section 12022.53 enhancement, Hamilton would have
been left with a sentence of 15 years to life for attempted murder.
The Governor’s commutation left Hamilton with a sentence of
15 years to life. Hamilton has not explained how he is harmed.
He only points out that the gang enhancement remains on the
abstract of judgment. Ordinarily we do not render opinions on
moot questions or abstract propositions. (People v. Gregerson
(2011) 202 Cal.App.4th 306, 321.) A case is moot when the
court’s opinion can have no practical effect. (Ibid.) Here
Hamilton points to no practical effect of having the gang
enhancement remain on the abstract of judgment.
Moreover, the Governor had already granted Hamilton
clemency. Hamilton refers to nothing that would justify a further
grant of clemency by striking the firearm enhancement. In fact,
in rejecting Hamilton’s plea for a 15 year determinate term, the
trial court stated, “I note that 12022.53 is still law. The court
believes that firearms present a huge danger to the community.”
When the trial court stated that the Governor’s
commutation of sentence rendered the remand to exercise its
discretion moot, it was essentially saying it saw no basis for
granting further relief. The parties apparently understood that.
Hamilton points to no objection having been raised at the
sentencing hearing that the court refused to exercise its
discretion on the section 12022.53 enhancement. In fact,
Hamilton’s only request at the sentencing hearing was that the
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court change his sentence to a 15 year determinate term. The
court refused, pointing out that such a sentence is unauthorized.
Our remand to the trial court with instructions to exercise
its discretion under section 12022.53, subdivision (h), became
moot when the Governor issued a commutation of sentence. Even
if the matter were not moot, Hamilton waived the issue by failing
to object.
II. Amendments to Section 186.22
Hamilton contends the amendments to section 186.22
enacted in Assembly Bill 333 (Stats. 2021, ch. 626, § 65, eff. Jan.
1, 2022), require remand to the trial court.
Section 186.22, subdivision (b)(1), provides a sentence
enhancement for “a person who is convicted of a felony committed
for the benefit of, at the direction of, or in association with a
criminal street gang, with the specific intent to promote, further,
or assist in criminal conduct by gang members, shall, upon
conviction of that felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of
which the person has been convicted . . . .” In this case the trial
court struck the gang enhancement as to counts 1 and 3 and
stayed the gang enhancement as to count 2.
Both the previous and amended versions of section 186.22
require that the crime be “committed for the benefit of, at the
direction of, or in association with a criminal street gang.”
(§ 186.22, subd. (b)(1).) The section was amended to provide that
the common benefit must be more than reputational. (Id. at
subds. (e)(1) & (g).)
Previously, in order to prove the existence of a “criminal
street gang,” the prosecution was required to show that members
of the gang “individually or collectively” engage or engaged in a
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“pattern of criminal gang activity.” (Former § 186.22, subd. (f).)
The amendment removed “individually or.” (§ 186.22, subd. (f).)
The prosecution now can only rely on collective engagement in
criminal activity.
The term “pattern of criminal gang activity” means the
commission or attempted commission of two or more designated
offenses. The prior version of section 186.22 required that the
offenses be committed “on separate occasions, or by two or more
persons.” (Former § 186.22, subd. (e).) There was no
requirement that the offenses be committed by members of the
gang, or that the offenses commonly benefited the gang. The
amended version requires that “the offenses were committed on
separate occasions or by two or more members” and that “the
offenses commonly benefit from the offenses is more than
reputational.” (§ 186.22, subd. (e)(1).)
The People concede that because the judgment is not final,
Hamilton is entitled to the benefits of section 186.22 as amended.
(In re Estrada (1965) 63 Cal.2d 740.) The People argue, however,
that remand is not necessary because there is no reasonable
doubt that the result would be the same if the matter was
remanded.
The People point out that section 186.22, subdivision (g)
gives as an example of a common benefit to the gang that is more
than reputational, “targeting a perceived or actual gang rival.” It
is undisputed that Hamilton is a member of the Black P Stones
gang and the victim, Flores, is associated with the rival Rollin
30’s gang. Prior to the shooting, Hamilton challenged Flores by
asking if he was “from Harlem,” a reference to the Rollin 30’s
gang.
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The People argue that there was overwhelming evidence
that two predicate offenses benefitted the Black P Stones gang,
and the benefit was more than reputational.
The first offense was committed by Julian Blackshire, an
admitted Black P Stones gang member. He was convicted of a
murder that occurred on August 28, 2008. Blackshire robbed a
security guard, took the guard’s gun and shot him with it. A
gang expert testified that weapons possession is one of the
primary activities of the Black P Stones gang. Taking the gun
was a common benefit to the gang. The connection between guns
and gangs is too close and too obvious to admit any other
reasonable conclusion.
The second offense is an attempted murder by two Black P
Stones gang members, Marquise Turley and Keishon Terrell.
Turley and Terrell drove into a rival gang member’s territory and
shot at a rival gang member several times. Targeting a rival
gang member is of common benefit that is more than
reputational. (§ 186.22, subd. (g).)
Hamilton argues that the predicate offenses must be
committed by more than one gang member acting in concert. He
claims that Blackshire individually committed the offense.
Hamilton relies on section 186.22, subdivision (f), defining
“criminal street gang.” The amended subdivision requires that
gang members “collectively” engage in a pattern of criminal gang
activity. But section 186.22, subdivision (e)(1), as amended,
defining “pattern of criminal gang activity,” requires proof of two
predicate offenses “committed on separate occasions or by two or
more members.”
There is a division of authority among Courts of Appeal on
the question whether the prosecution must show that the
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predicate offenses were committed collectively or whether it is
sufficient to show they were committed on separate occasions.
(See, e.g. People v. Clark (2022) 81 Cal.App.5th 133, 145
[separate occasions sufficient]; contra People v. Delgado (2022) 74
Cal.App.5th 1067, 1073 [separate occasions not sufficient]), The
question is currently before the Supreme Court. (Clark, supra,
rev. granted Oct. 19, 2022.)
In determining the Legislature’s i B319268ntent we begin
with the language of the statute. (People v. Scott (2014) 58
Cal.4th 1415, 1421.) If the plain and commonsense meaning of
the statutory language is clear we need go no further. (Ibid.)
Here the statutory language is clear. The Legislature used
the disjunctive, “committed on separate occasions or by two or
more gang members.” (§ 186.22, subd. (e)(1).) Moreover,
interpreting the language to always require two or more gang
members, renders the words “on separate occasions” surplusage.
We avoid interpreting a statute in a manner that would render
some of its language surplusage. (People v. Loeun (1997) 17
Cal.4th 1, 9.) Finally, there is nothing inconsistent about an
individual member of a gang committing a crime for the gang’s
collective benefit. For example, an individual can rob someone of
a firearm for the collective benefit of the gang. We conclude it is
sufficient to show that the predicate offenses are committed on
separate occasions. There is no requirement that the offenses be
committed by two or more gang members.
We need not remand due to the amendments to section
186.22. Under the evidence presented at trial, any reasonable
trier of fact would find the gang allegation to be true beyond a
reasonable doubt under section 186.22 as amended.
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III. Amendment to Section 1109
Hamilton contends remand is necessary under an
amendment to section 1109 (Assem. Bill 333, Stats. 2021, ch. 699,
§ 5, eff. Jan. 1, 2022), allowing a bifurcation trial on the gang
enhancement.
But even assuming the procedural change to section 1109
applies retroactively, Hamilton fails to show prejudice. The
standard in People v. Watson (1956) 46 Cal.2d 818, 836, applies to
the failure to bifurcate the gang enhancement. (People v. Tran
(2022) 13 Cal.5th 1169, 1209-1210.)
The evidence that Hamilton committed the substantive
offenses is overwhelming. Even if the gang enhancement had
been bifurcated, gang evidence would have been admitted to
show identity and motive. The jury was instructed it could not
consider gang evidence to show Hamilton is a person of bad
character or had the disposition to commit the crimes.
(CALCRIM No. 1403.) We presume the jury followed the
instruction. (People v. Franklin (2016) 248 Cal.App.4th 938, 953.)
Hamilton has failed to show it is reasonably probable he would
have obtained a more favorable result had the gang enhancement
been bifurcated. (People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. BALTODANO, J.
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Renee F. Korn, Judge
Superior Court County of Los Angeles
______________________________
Marta I. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Roberta L. Davis and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent.