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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

 Plaintiff and Respondent,

v.

RICKY HAMILTON et al.,

 Defendants and Appellants.

2d Crim. No. B256760

(Super. Ct. No. BA381749-01, -03)

(Los Angeles County)

ORDER MODIFYING OPINION 

AND DENYING REHEARING

[CHANGE IN JUDGMENT]

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 
2

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.”
3

This modification changes the judgment. Appellant Ricky 

Hamilton’s petition for rehearing is denied.

___________________________________________________________

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

 Plaintiff and Respondent,

v.

RICKY HAMILTON et al.,

 Defendants and Appellants.

2d Crim. No. B256760

(Super. Ct. No. BA381749-01, -03)

(Los Angeles County)

OPINION FOLLOWING 

REHEARING 

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 
2

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 
3

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.
4

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 
5

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 
6

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].)
7

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].) 
8

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 
9

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 
10

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. 
11

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.
12

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.