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People v. Barao

California Court of Appeals, Third District, San Joaquin

August 5, 2013

THE PEOPLE, Plaintiff and Respondent,
v.
RAMMEL BARAO, Defendant and Appellant.

CERTIFIED FOR PARTIAL PUBLICATION[*]

APPEAL from a judgment of the Superior Court of San Joaquin County No. SF111178A, George J. Abdallah, Jr., Judge.

Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

NICHOLSON, J.

Defendant Rammel Barao shot and killed Juan Carlos Lorenzo. An information jointly charged defendant and a codefendant with murdering Lorenzo in the course of robbing him (Pen. Code, §§ 187; 190.2, subd. (a)(17)(A); count 1)[1] and with the robbery of Lorenzo and Lorenzo's companion, Domingo Moyotl (§ 211; counts 2 and 3). Each of these three counts alleged defendant personally used a firearm. (§ 12022.53, subd. (d).) Defendant was also charged with possession of a firearm by an ex-felon (§ 12021, subd. (a)(1); count 4) and unlawful possession of ammunition (§ 12316, subd. (b)(1); count 5). The information further alleged defendant had previously been convicted of two serious felonies for purposes of the “Three Strikes” law (§§ 667, subd. (a); 1170.12, subd. (b)), and that he had served a prior prison term (§ 667.5, subd. (b)).

Defendant pleaded not guilty. However, prior to trial, the prosecutor and the defendant sought the court’s approval of a plea bargain. Under the proposal, the prosecutor would amend the information by charging defendant with voluntary manslaughter instead of murder, defendant would plead guilty to that charge, and he would admit the gun use, one of the prior strikes, and the prior prison term. In exchange, he would receive a prison term of 41 years. The trial court refused to approve the bargain and denied the request to amend the information.

During trial, defendant sought a jury instruction on involuntary manslaughter. The trial court denied defendant’s request.

A jury convicted defendant on count 1 of second degree murder, and it found the firearm enhancements to be true. The jury also convicted defendant on counts 4 and 5, possession of a firearm and possession of ammunition. It acquitted him of the two robbery counts, counts 2 and 3. The trial court subsequently found the prior strike and prison term allegations to be true, and it sentenced defendant to a state prison term of 75 years to life.[2]

On appeal, defendant contends the trial court abused its discretion by refusing to approve the plea bargain and the proposed amendment to the information. Defendant also contends the trial court erred when it denied his request for a jury instruction on involuntary manslaughter. We disagree with his contentions and affirm the judgment.

FACTS

We take most of our discussion of the facts from our published opinion in the codefendant’s appeal, People v. Johnson, supra, 208 Cal.App.4th at pages 1095-1096. During the evening of February 28, 2009, defendant and codefendant Vandell Johnson, Jr., accompanied by their girlfriends, walked from defendant’s apartment to a pool hall to play pool. Also present at the pool hall were Lorenzo and Moyotl. Although Moyotl understood only a little English, the two groups struck up a conversation. Eventually the four men went into the parking lot and began discussing drugs. Moyotl heard someone say “cocaine, ” but he did not understand much more of the conversation.

After speaking for a short time, the four men got into Lorenzo’s car -- Moyotl in the driver’s seat, Lorenzo in the passenger seat, and defendant and codefendant Johnson in the backseat. Defendant and Johnson tried to give Moyotl directions, but Moyotl had difficulty understanding, so Lorenzo took over the driving. Defendant or Johnson directed Lorenzo to a parking lot.

According to Moyotl, Johnson got out of the car and walked toward the street, but then he returned and stood by the driver’s door. Moyotl saw defendant get out of the car, take a gun from his waistband and put it up his sleeve. As defendant and Johnson were speaking with Lorenzo on the driver’s side, Moyotl said to Lorenzo, “Let's go, let's go now.” However, Lorenzo continued talking and ...


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