People v. Barao
| Decision Date | 05 August 2013 |
| Docket Number | C066524 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RAMMEL BARAO, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
CERTIFIED FOR PARTIAL PUBLICATION*
APPEAL from a judgment of the Superior Court of San Joaquin County, George J. Abdallah, Jr., Judge. Affirmed.
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.
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 andprison 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.
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 then defendant shot Lorenzo in the head. Lorenzo's car rolled about 25 feet, hit a fence, and stopped.
Defendant 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.
Defendant 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 defendant were being set up, Johnson got out of Lorenzo's car and walked away. However, he heard Lorenzo speaking loudly to defendant, so he walked back to the car. While Johnson and defendant were talking with Lorenzo, defendant suddenly pulled out a gun, which Johnson did not know defendant possessed.Lorenzo reached out of the driver's window for the gun, Johnson heard the car's engine rev, and defendant then shot Lorenzo. Johnson fled because he was scared.
Johnson denied robbing or intending to rob either Lorenzo or Moyotl. When he later asked defendant what happened, defendant said that "the guy tried to run him over and then a shot went off."
Defendant contends the trial court abused its discretion and violated the constitutional doctrine of separation of powers when it refused to accept the plea bargain and denied the prosecution's motion to amend the information. He claims the prosecutor had determined the evidence was insufficient to prosecute a charge of murder, and the court should have honored that decision. He asserts the plea bargain was not barred by section 1192.7's prohibition of plea bargaining in serious felony cases. He also argues the proposed amendment to the information did not violate any of defendant's substantive rights, and the court denied the amendment based on an improper factor, the disparity in sentencing. We conclude the court did not abuse its discretion in denying the plea bargain and the motion to amend.
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, defendant 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 court disagreed with that assertion, having been the judge that conducted defendant'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 defendant did not intend to rob Lorenzo and Moyotl, and that the gun discharged accidentally when Lorenzo reached out of the car towards defendant.
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, defendant filed a motion to join the prosecution's motion to amend. He asserted that under section 1009, the statute that allows amendment 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 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 1009 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 the defendant 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.3
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