Filed 4/27/16 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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.

RICKY HAMILTON et al.,

     Defendant and Appellant.


                   Ricky Hamilton and Rondalyn S. Johnson appeal judgment after
conviction by jury of first degree willful, deliberate, and premeditated attempted murder
of Wassan Flores; first degree burglary; and, as to Hamilton only, home 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. It sentenced Johnson to 15 years to life
in prison. We modify Johnson's sentence to reflect the correct seven-year minimum




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    All statutory references are to the Penal Code unless otherwise stated.
parole eligibility period and to strike the 15-year minimum parole eligibility period. We
otherwise 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.
              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


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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 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 - Natural and Probable Consequences Doctrine (Johnson)
              The trial court properly instructed the jury that Johnson could be
convicted of attempted murder as a co-conspirator if the attempted murder was
committed to further the conspiracy and was a natural and probable consequence of the
conspiracy's plan. Johnson acknowledges we are bound by authority approving the


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instruction. (People v. Hardy (1992) 2 Cal.4th 86, 188; Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455-456.) Johnson challenges the instruction to
preserve her right to argue on further review that the California Supreme Court should
extend its holding in People v. Chiu (2014) 59 Cal.4th 155 to attempted murder.
   Instructions - Willful, Deliberate, and Premeditated Attempted Murder (Johnson)
              The trial court properly instructed the jury it could find true allegations
against Johnson that the attempted murder was willful, premeditated, and deliberate
without finding that willful, premeditated, and deliberate murder was a natural and
probable consequence of the target burglary. (People v. Favor (2012) 54 Cal.4th 868,
879-880 (Favor).) "Under the natural and probable consequences doctrine, there is no
requirement that an aider and abettor reasonably foresee an attempted premeditated
murder as the natural and probable consequence of the target offense. It is sufficient
that attempted murder is a reasonably foreseeable consequence of the crime aided and
abetted, and the attempted murder itself was committed willfully, deliberately and with
premeditation." (Id. at p. 880.)
              Johnson acknowledges that the instruction conformed to Favor, but argues
the United States Supreme Court implicitly rejected Favor's reasoning when it decided
that a firearm allegation must be proven to a jury beyond a reasonable doubt before a
trial court may use it to enhance a defendant's sentence. (Alleyne v. United States
(2013) _ U.S. _ [133 S.Ct. 2151, 2160].) We disagree. Unlike Alleyne, this case does
not involve judicial fact finding. Johnson's jury found beyond a reasonable doubt that
attempted murder was a natural and probable consequence of the target offense and that
Hamilton acted willfully, with premeditation and deliberation.
 Instructions - Assault with a Firearm as Lesser Included Offense to Attempted Murder
                                   (Johnson and Hamilton)
              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


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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 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



                                             5
in defining necessarily included offenses for the multiple conviction rule, Apprendi
notwithstanding]; People v. Sloan, supra, 42 Cal.4th 110, 122-123 [same].)
                       Bifurcation of Gang Allegations (Johnson)
              The trial court did not abuse its discretion when it denied Johnson's
motion to bifurcate the gang allegations because the gang evidence was inextricably
intertwined with other evidence of guilt of the charged crimes. (People v. Hernandez
(2004) 33 Cal.4th 1040, 1048 [abuse of discretion standard of review].) The gang
evidence was relevant to prove motive and intent. The historic rivalry between Flores's
and Hamilton's gangs, the violent activities of those gangs, and the importance of
respect within the gangs helped explain why Hamilton would shoot Flores after running
away from his challenge to fight. It was also relevant to prove that Johnson, the
girlfriend of a gang member, could have foreseen the shooting. (Hernandez, at p. 1049
[evidence of a gang's territory, membership, signs, symbols, beliefs and practices,
criminal enterprises, and rivalries may be relevant to prove identity, motive, specific
intent, and other issues related to charged crimes].) "[T]he criminal street gang
enhancement is attached to the charged offense and is, by definition, inextricably
intertwined with that offense. So less need for bifurcation generally exists with the gang
enhancement than with a prior conviction allegation." (Ibid.) The evidence of other
crimes committed by gang members was not unduly prejudicial. (Evid. Code, § 352.)
The crimes were not significantly more violent than the charged conduct and the expert
did not testify about them in unnecessary detail.
               Sufficient Evidence of Intent and Premeditation (Hamilton)
              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


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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].)
                  Gang Expert Testimony on Ultimate Fact (Hamilton)
              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. It 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."



                                            7
              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 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 (Hamilton)
              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]


                                              8
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 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 Wassan 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 (Hamilton)
                After the verdict and before sentencing, Hamilton' 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



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determine if the conflict existed during trial. (Cal. Rules of Court, rule 8.45(c)(D)(2).)
We have reviewed the transcript and are satisfied that the conflict arose after trial.
                       Minimum Parole Eligibility Period (Johnson)
              We modify the judgment as to Johnson to reflect the correct minimum
parole eligibility period of seven years. (§ 3046, subd. (a)(1); People v. Salas (2001) 89
Cal.App.4th 1275, 1280 [seven-year parole eligibility period for standard life term
unless enhanced].) There was no gang enhancement against Johnson or any other
provision authorizing the increased 15-year minimum parole eligibility period.
                                      DISPOSITION
              We modify the judgment as to Johnson to reflect the correct seven-year
minimum parole eligibility period and to strike the 15-year minimum parole eligibility
period. The superior court shall amend the abstract of judgment accordingly and send a
certified copy to the Department of Corrections and Rehabilitation. We otherwise
affirm the judgment.
              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.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, William H. Shin, Deputy Attorney
General, for Plaintiff and Respondent.




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