The People v. Barao

Filed 8/5/13 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C066524

Plaintiff and Respondent, (Super. Ct. No. SF111178A)

v.

RAMMEL BARAO,

Defendant and Appellant.

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.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part II.

1

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