I. BACKGROUND/PRIOR PROCEEDINGS On June 19, 2009, Barao and his co-defendant, Vandell Johnson, Jr., were jointly charged with the murder of Juan Carlos Lorenzo (count 1) and the robbery of Lorenzo and Lorenzo's companion, Domingo Moyotl (counts 2 and 3). The information also alleged that Barao committed the murder during the commission of a robbery and intentionally and personally discharged a firearm causing great bodily injury. With regards to counts 2 and 3, the information again alleged that Barao intentionally and personally used and discharged a firearm causing great bodily injury. Barao was separately charged in count 4 with possession of a firearm by an ex-felon and in count 5 with unlawful possession of ammunition. It was further alleged that Barao had been previously convicted of two serious felonies and had served a prior separate term in state prison. Barao entered not guilty pleas to the charges and denied the enhancements. On direct appeal of his conviction, the California Court of Appeal described the following events underlying the charges against Barao:
During the evening of February 28, 2009, [Barao] and codefendant Vandell Johnson, Jr., accompanied by their girlfriends, walked from [Barao'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 [Barao] and codefendant Johnson in the backseat. [Barao] and Johnson tried to give Moyotl directions, but Moyotl had difficulty understanding, so Lorenzo took over the driving. [Barao] 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 [Barao] get out of the car, take a gun from his waistband and put it up his sleeve. As [Barao] 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 then [Barao] shot Lorenzo in the head. Lorenzo's car rolled about 25 feet, hit a fence, and stopped.
[Barao] immediately walked away from the area, but Johnson went to the passenger side of the car and demanded money from Moyotl. Moyotl gave Johnson his wallet, and Johnson gestured for Moyotl to get out of the car and leave. Moyotl walked away but looked back and saw Johnson get into the front passenger seat of Lorenzo's car. As Moyotl walked, he called the police, who met him at a laundromat about two blocks away.
Police officers who responded to the laundromat spoke with Moyotl, with whom they had difficulty communicating. Eventually, the officers learned of the shooting and found Lorenzo's car in the parking lot with Lorenzo still in it. Lorenzo's car stereo, which had been in the dashboard prior to the shooting, was missing and the connecting wires were hanging from the center console. Lorenzo was still alive and was transported to a hospital, but he died a few days later. The cause of death was a single gunshot wound to the head.
Defense
[Barao] did not testify or present any evidence. Johnson, however, testified on his own behalf. He confirmed meeting Lorenzo and Moyotl at the pool hall. Johnson claimed it was Lorenzo who was selling drugs and that he, who also sold drugs, intended to buy drugs from Lorenzo. Lorenzo set up the buy and drove them to the parking lot where the drugs were to be delivered.
Fearing that he and [Barao] were being set up, Johnson got out of Lorenzo's car and walked away. However, he heard Lorenzo speaking loudly to [Barao], so he walkedback to the car. While Johnson and [Barao] were talking with Lorenzo, [Barao] suddenly pulled out a gun, which Johnson did not know [Barao] possessed. Lorenzo reached out of the driver's side window for the gun, Johnson heard the car's engine rev, and [Barao] then shot Lorenzo. Johnson fled because he was scared.
Johnson denied robbing or intending to rob either Lorenzo or Moyotl. When he later asked [Barao] what happened, [Barao] said that "the guy tried to run him over and then a shot went off."
People v. Barao, 160 Cal. Rptr. 3d 506, 508-09 (Cal. Ct. App. 2013).
Barao attempted to negotiate a plea deal with the prosecution. The Court of Appeal also described the following facts underlying those negotiations:
Prior to trial, the prosecutor sought leave to amend the information by charging voluntary manslaughter instead of murder in count 1. The prosecutor explained she sought leave to amend in order to facilitate a proposed plea bargain, which she also sought to be approved at the same time. Under the plea bargain, [Barao] would plead guilty to voluntary manslaughter and two counts of robbery, would admit one of his prior strikes, would admit to use of a gun, and would admit his prior prison term. He would receive a prison term of 41 years.
The prosecutor and defense counsel believed the proposed plea more correctly conformed to the evidence. The trial judge disagreed with that assertion, having been the judge that conducted [Barao's] preliminary hearing. The prosecutor explained that based on the evidence, it was possible the jury would convict of voluntary manslaughter instead of murder. She believed there was a potential the jury could conclude [Barao] did not intend to rob Lorenzo and Moyotl, and that the gun discharged accidentally when Lorenzo reached out of the car towards [Barao].
The court took the motions to amend and approve the plea bargain under submission. It was "not prepared to grant the motions at this point based on the facts and circumstances as the Court heard them at the preliminary hearing."
Subsequently, [Barao] filed a motion to join the prosecution's motion to amend. He asserted that under [California Penal Code] section 1009,1 the statute that allowsamendment of a criminal pleading, amending the information by charging voluntary manslaughter instead of murder was appropriate because sufficient evidence introduced at the preliminary hearing supported the voluntary manslaughter charge.
Ultimately, the court refused to approve the plea bargain and it denied the motion to amend. The court disapproved the plea bargain based on the evidence presented to it at the preliminary hearing. It also concluded [Penal Code] section 1192.7 prohibited plea bargaining in this case, and that none of the exceptions to that rule applied.
The court also denied the motion to amend the information. Section 10092 vested the court with discretion to grant or deny a proposed amendment to an information, and the court exercised that discretion and denied the amendment, again based on the evidence presented at the preliminary hearing.
The prosecutor and [Barao] sought the court's approval of the plea bargain and information amendment on three additional occasions; once in pretrial, once during in limine motions, and once during trial. Each time, the trial court denied the motion.
Id. at 509-10 (footnote omitted).
On July 19, 2010, Barao and Johnson proceeded to a joint jury trial. On September 3, 2010, the jury found Barao guilty of second-degree murder (count 1) and found true the firearm enhancements attached to that charge. Barao was also convicted on the possession charges (counts 4 and 5), but acquitted of the robbery charges (counts 2 and 3).3 After waiving his right to a jury trial on the prior conviction allegations, the court found true the prior convictions as well as the prior prison term enhancement. Barao was subsequently sentenced to serve an aggregate term of 75 years to life imprisonment.
Through counsel, Barao appealed his conviction, arguing that the trial court: 1) abused its discretion when it denied the prosecution's motion to amend the information and declined to accept the proposed plea bargain; and 2) erroneously refused to instruct the jury on involuntary manslaughter. On August 5, 2013, the California Court of Appeal issued a partially-published, reasoned opinion rejecting Barao's claims and affirming his judgment in its entirety. Barao, 160 Cal. Rptr. 3d at 511. Barao petitioned the California Supreme Court for review, which was summarily denied on September 16, 2013. Barao's conviction became final on direct review 90 days later, when his time to file a petition for certiorari in the Supreme Court expired on December 16, 2013. See Jiminez v. Quarterman, 555 U.S. 113, 119 (2009); Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999).
Barao timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on December 10, 2014.
