People v. Pitoau CA4/1

Filed 7/19/21 P. v. Pitoau CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076978
Plaintiff and Respondent,
v.
(Super. Ct. No. SCD273138)
RAY KOLOSETA PITOAU,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Melinda J. Lasater, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and
Respondent.
During a verbal altercation in San Diego’s Gaslamp Quarter, defendant
Ray Pitoau pulled a gun, which eventually discharged after one of the
participants in the altercation attempted to disarm Pitoau. The participant
and an uninvolved bystander were shot. Pitoau argued at trial that he had
acted in self-defense, and that the gun accidentally discharged during the
altercation. Across several trials, juries ultimately found Pitoau guilty of
assault with a firearm (Pen. Code, § 245, subd. (a)(2)),1 simple assault
(§ 240), carrying a loaded firearm in public (§ 25850), being a felon in
possession of a firearm (§ 29800, subd. (a)(1)), and carrying a concealed
firearm (§ 25400, subd. (a)(2)). A jury also found firearm (§§ 12022.5,
subd. (a), 1192.7, subd. (c)(8)) and great bodily injury (§§ 12022.7, subd. (a),
1192.7, subd. (c)(8)) enhancement allegations to be true, and Pitoau admitted
certain priors. The trial court sentenced him to 21 years, plus 50 years to
life.
On appeal, Pitoau contends the trial court erred by refusing to instruct
the jury regarding his accident defense. We need not determine whether the
trial court erred in refusing the instruction, because any such error was
harmless. The court properly instructed jurors that to find Pitoau guilty of
assault, they would have to find that he “willfully”—defined as “willingly or
on purpose” (CALCRIM Nos. 875, 915, italics added)—committed the
assaults, and that to find the firearm enhancement allegations true, they
would have to find that he acted “intentionally” (CALCRIM No. 3146). By
finding Pitoau guilty and the enhancement allegations true, the jury
necessarily rejected his accident theory.
Accordingly, we affirm the judgment.
1 Unspecified statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
The Assaults
On August 6, 2017, brothers Jason, Joshua, and Stephen attended a
concert at Petco Park. They drank alcohol before, during, and likely after the
concert.
After the concert, around midnight, the brothers met up with some of
Jason’s friends in the nearby Gaslamp Quarter. Jason and the friends were
all off-duty law enforcement officers. The group went to two bars. Bouncers
escorted Joshua and Jason out of the first bar after Joshua got into an
argument with other patrons. The group decided to call it a night a little
after 1:00 a.m.
As the group walked down the sidewalk, Joshua passed Pitoau, who
was sitting on a handrail outside a restaurant. The jury heard conflicting
testimony about what happened next.
According to prosecution witnesses, Pitoau started a verbal altercation,
hopped off the handrail, raised his shirt to reveal a handgun tucked in his
waistband, and approached Joshua. When Joshua said he did not want any
trouble, Pitoau “drew his weapon and pointed it at [Joshua].” Joshua yelled
out that someone had a gun, and Jason intervened to attempt to disarm
Pitoau. Jason was unsuccessful, and Pitoau fired two shots, striking Jason
and an uninvolved bystander, both of whom were treated for their wounds at
hospitals.
According to Pitoau, it was Joshua who started the verbal altercation
as he walked by. Pitoau was willing to fist-fight Joshua one-on-one, but
Joshua left and quickly returned with his group of friends. The group
mocked Pitoau and “started fanning out” around him. Pitoau believed the
group was going to “jump” him and possibly kill him. Pitoau backed up and
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bumped into his friend (Emery Z.), who had been waiting with Pitoau outside
the restaurant. When he bumped into Emery, Pitoau felt Emery holding
something that turned out to be a gun. Pitoau grabbed the gun, pointed it
toward the ground—never at the group—and repeatedly told the group to
“[b]ack the fuck up.” Jason approached Pitoau, grabbed at his hand in an
attempt to disarm him, and the men struggled over the gun. During the
struggle, the gun discharged twice.
Pitoau ran off through downtown, ducking into a parking garage to
change his shirt and hairstyle. In a secluded area, he abandoned the gun by
placing it under the tire of a parked semi truck so that the gun would get
driven over and become unusable. Pitoau messaged a friend through social
media, stating, “I shot someone. They all over me downtown.” Pitoau
hitchhiked home, then fled the next day to Mexico.
Police found the gun and linked it to Pitoau through DNA. DNA
analysis excluded Pitoau’s friend, Emery, as a possible contributor, and
further excluded Jason as a contributor from one area of the gun, but
indicated limited support for inclusion as to another area of the gun.
About one month after the incident, Pitoau was apprehended in Mexico
and brought back to the United States.
Verdicts and Sentencing
Pitoau was charged with three counts of assault with a firearm (§ 245,
subd. (a)(2)), and one count each of carrying a loaded firearm in public
(§ 25850, subd. (a)), being a felon in possession of a firearm (§ 29800, subd.
(a)(1)), and carrying a concealed firearm (§ 25400, subd. (a)(2)). The assault
charges carried enhancement allegations that Pitoau personally used a
firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)) and, as to the victims who
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were shot, personally inflicted great bodily injury (§§ 12022.7, subd. (a),
1192.7, subd. (c)(8)) in the commission of the offense.
Pitoau was tried three times before he was eventually convicted on all
charges.
In the first trial, the jury found Pitoau guilty on the three firearm-
related counts, but could not reach unanimous verdicts on the assault counts.
In a retrial on the assault counts, the jury was likewise unable to reach
unanimous verdicts.
In yet another retrial on the assault counts, the jury found Pitoau
guilty of assault with a firearm as to Jason and the bystander, and guilty of
simple assault (as a lesser included offense of assault with a firearm) as to
Joshua. The jury found true the firearm and great bodily injury
enhancement allegations attached to the assault with a firearm counts.
Pitoau admitted four prison priors, two serious felony priors, and two
strike priors.
The trial court sentenced Pitoau to 21 years, plus 50 years to life.
DISCUSSION
Pitoau contends substantial evidence supported his theory that the gun
discharged accidentally while Jason was attempting to wrestle it away from
him, and, thus, the trial court erred by denying Pitoau’s request to instruct
the jury regarding the defense of accident (CALCRIM No. 3404). We need not
determine whether substantial evidence supported the theory, because we
conclude the omission of an instruction regarding accident was not
prejudicial.
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A. Background
Jason and Pitoau gave conflicting accounts of how the gun discharged.
According to Jason, he started running toward Pitoau “simultaneously”
with Pitoau raising the gun and pointing it chest-high at Jason and Joshua.
Jason approached Pitoau, “struck the outside of his forearm, pushing it down,
away from [Jason’s] body,” and “wrapped [his] arms around [Pitoau’s] body in
a bear hug, and . . . attempted to sweep him to the ground.” Jason testified at
trial that he never touched the gun itself, but he acknowledged he previously
told a police officer he had “grabbed the gun.” Jason explained he did not
mean “grabbed” in its literal sense. Pitoau managed to free his right arm
from the “bear hug,” point the gun at Jason, and fire two shots.
According to Pitoau, while he was pointing the gun toward the ground,
Jason approached him, reached out, and grabbed the hand in which Pitoau
was holding the gun. Jason “cupped” Pitoau’s hand with both hands, pulled
back, and twisted. Jason “grabbed [the gun], twisted, yanked it, and then he
yanked it a couple of times, and then it went off.” After the gun discharged,
Jason “continued to jerk it,” and “it went off again.”
Pitoau testified he held the gun with his finger outside the trigger
guard the entire time—his “finger was never on the trigger.” When the gun
discharged, he could not “see the trigger,” “see what pushed the trigger back,”
or “feel what pushed the trigger back.” He never “purposely ma[d]e a motion
to pull [his] finger in th[e] trigger well.” He surmised it “[c]ould have been”
“Jason’s finger that pushed th[e] trigger.”
A criminalist with the police department’s firearms unit testified that
the recovered gun—a .38 caliber Smith & Wesson revolver—was inoperable
when police recovered it. Photographs showed two expended rounds in the
cylinder, in a position suggesting the trigger had been pulled six times. An
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identical gun in the crime lab’s “reference collection” had a “trigger pull” of
about 12 pounds, which, despite being “one of the heavier trigger pulls you
will find,” can still be pulled with one finger. The criminalist acknowledged
“it’s possible that if people are pulling back and forth on a firearm, that a
trigger could be pushed back inadvertently.” On the other hand, if a person
were squeezing the revolver’s cylinder, it would increase the amount of force
required to pull the trigger, and potentially prevent the revolver from firing
altogether.
Based on this testimony, defense counsel requested that the court
instruct the jury regarding accident with CALCRIM No. 3404, which provides
in part:
“The defendant is not guilty of if (he/she)
acted [or failed to act] without the intent required for that
crime, but acted instead accidentally. You may not find the
defendant guilty of unless you are
convinced beyond a reasonable doubt that (he/she) acted
with the required intent.”
The prosecutor opposed the request, arguing (1) “[t]here was nothing
accidental about” Pitoau “injecting the firearm into the situation”; (2) Pitoau
committed an assault with a firearm merely by pointing the gun at people;
and (3) Pitoau “never said it was an accident,” but, rather, merely said “he
did not pull the trigger” (italics added).
The court tentatively denied the request, agreeing that the assault
appeared to consist of “pulling the gun up and pointing it.” The court stated
it would conduct further research and deliver a final ruling.
The next court day, the court confirmed its tentative ruling. The court
explained that the accident defense is a pinpoint instruction that is “basically
a defense that the defendant acted without forming the required mental state
to make the act a crime.” The court reasoned that because assault with a
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firearm does not require that the defendant intend to pull the trigger, the
instruction was unnecessary. The court noted the defense might be relevant
to the firearm enhancement allegations, but concluded that tailoring the
instruction for such “an extremely limited application” would be “unduly
confusing” to the jury “and extremely difficult” to do.
The court instructed the jury regarding assault with a firearm, using
CALCRIM No. 875, which states in part (as given):
“To prove that the defendant is guilty of [assault with a
firearm], the People must prove that:
“1. The defendant did an act with a firearm that by its
nature would directly and probably result in the
application of force to a person;
“2. The defendant did that act willfully;
“3. When the defendant acted, he was aware of facts that
would lead a reasonable person to realize that his act by its
nature would directly and probably result in the
application of force to someone;
“4. When the defendant acted, he had the present ability to
apply force with a firearm to a person; [¶] AND
“5. The defendant did not act in self-defense.
“Someone commits an act willfully when he or she does it
willingly or on purpose. It is not required that he or she
intend to break the law, hurt someone else, or gain any
advantage.”
The court instructed the jury regarding simple assault (as a lesser
included offense of assault with a firearm) using CALCRIM No. 915, which is
substantially similar to CALCRIM No. 875 and includes the same definition
of “willfully.”
Finally, regarding the firearm enhancement allegations, the court
instructed the jury with CALCRIM No. 3146, which states in part: “Someone
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personally uses a firearm if he or she intentionally does any of the following:
[¶] 1. Displays the firearm in a menacing manner; [¶] 2. Hits someone with
the firearm; [¶] OR [¶] 3. Fires the firearm.” (Second italics added.)
In closing, the prosecutor argued Pitoau had acted “willfully” because
“whatever act” he did—“raising a gun, squeezing the trigger, interjecting it in
the situation”—“was an intentional one. . . . It wasn’t a result of a spasm or
something like that.” The prosecutor further argued the “defense position”
was “refute[d]” by the fact the expended rounds “were in such a position [in
the cylinder that] it looks like the trigger got pulled six times. That’s not six
inadvertent gunshots; that’s ‘I’m shooting someone and I’m emptying the
clip.’ I'm squeezing that trigger as many times as I can.”
Defense counsel argued in closing that “there’s no evidence that th[e]
trigger was pulled willfully”—“there was a tug of war,” Pitoau’s “finger was
not on the trigger,” Pitoau “doesn’t remember feeling his finger ever hit the
trigger,” and “they couldn’t see . . . where the trigger [was] at that point.”
Counsel implored the jury, “[Y]ou have to ask yourself, was it done willfully?
Was that a volitional act? And if no one can see the trigger, no one can
answer that question. And there’s the reasonable doubt.”
As noted, the jury found Pitoau guilty of two counts of assault with a
firearm and one count of simple assault, and found the firearm enhancement
allegations attached to the assault with a firearm counts to be true.
B. Legal Principles
The defense of accident is available to any person “who committed the
act . . . charged through misfortune or by accident, when it appears that there
was no evil design, intention, or culpable negligence.” (§ 26; see People v.
Anderson (2011) 51 Cal.4th 989, 996 (Anderson).)
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Accident is not a true affirmative defense. (People v. Gonzalez (2018)
5 Cal.5th 186, 199, fn. 3.) Rather, “it is a request for an instruction that
negates the intent element of” a charged offense. (Ibid.; see People v.
Jennings (2010) 50 Cal.4th 616, 674 (Jennings) [the claim of “accident
‘amounts to a claim that the defendant acted without forming the mental
state necessary to make his or her actions a crime’ ”]; CALCRIM No. 3404
[“The defendant is not guilty . . . if (he/she) acted . . . without the intent
required for that crime, but acted instead accidentally.”].)
Because the accident defense seeks only to “rebut the mental element of
the crime or crimes with which the defendant was charged” (Anderson, supra,
51 Cal.4th at p. 998), it is a pinpoint instruction that need only be given upon
request (id. at pp. 996-997; see Jennings, supra, 50 Cal.4th at pp. 674-675).
“A trial court must give a pinpoint instruction, even when requested, only if it
is supported by substantial evidence.” (People v. Ward (2005) 36 Cal.4th 186,
214.) “ ‘In determining whether the evidence is sufficient to warrant a jury
instruction, the trial court does not determine the credibility of the defense
evidence, but only whether “there was evidence which, if believed by the jury,
was sufficient to raise a reasonable doubt.” [Citations.]’ ” (People v. Mentch
(2008) 45 Cal.4th 274, 288; see People v. Wilson (2005) 36 Cal.4th 309, 331
[“ ‘Substantial evidence is “evidence sufficient ‘to deserve consideration by the
jury,’ not ‘whenever any evidence is presented, no matter how weak.’ ” ’ ”].)
“Omission of an instruction is harmless beyond a reasonable doubt if
‘ “the factual question posed by the omitted instruction was necessarily
resolved adversely to the defendant under other, properly given
instructions.” ’ ” (People v. Lujano (2017) 15 Cal.App.5th 187, 195-196,
quoting People v. Wright (2006) 40 Cal.4th 81, 98.)
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C. Analysis
We need not decide whether substantial evidence supported Pitoau’s
accident theory—and, thus, whether the trial court erred by refusing to
instruct on that theory—because we conclude the omission of the instruction
was harmless beyond a reasonable doubt.
We find People v. Jones (1991) 234 Cal.App.3d 1303 (Jones) highly
instructive. The defendant in Jones was convicted of attempted premeditated
murder after he suddenly opened his car door during a traffic stop and
pointed a shotgun at a deputy sheriff’s head. (Id. at pp. 1306, 1308.) When
the deputy “made a sweeping motion with his left hand to try to knock the
shotgun barrel away . . . , the shotgun went off, striking [the deputy].” (Ibid.)
When the defendant was apprehended, he told the arresting officer, “I didn’t
mean to shoot him.” (Id. at pp. 1308-1309.)
On appeal, the defendant argued “the trial court committed prejudicial
error by failing to instruct the jury sua sponte on the defense of ‘accident and
misfortune.’ ” (Jones, supra, 234 Cal.App.3d at p. 1313.) The Court of Appeal
agreed there was error because “a reasonable juror could have concluded”
“that the shotgun discharged by accident, as a result of being struck by [the
deputy].” (Id. at p. 1314.)2 But the court found the error “was harmless
beyond a reasonable doubt” (id. at p. 1316) because “other proper instructions
adequately guide[d] the jury in reaching factual determinations on those
issues which would have been presented to the jury by the omitted
instruction” (id. at p. 1314). Specifically, the trial court instructed the jury
that to find the attempted murder was premeditated, the jury would have to
2 The California Supreme Court disapproved of Jones to the extent it
held that courts have a sua sponte duty to instruct on accident. (Anderson,
supra, 51 Cal.4th at p. 998, fn. 3.)
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find it was “willful, deliberate and premediated.” (Id. at p. 1315.) “ ‘Willful’
was properly defined for the jury as meaning ‘intentional.’ ” (Ibid.) The
appellate court reasoned that by finding that the defendant had acted
willfully, “it [was] clear, beyond credible argument, that the jury necessarily
rejected the evidence . . . that would have supported a finding to the effect
that defendant’s ‘accident and misfortune’ defense . . . was valid, thus
implicitly resolving the question of that defense adversely to defendant.” (Id.
at pp. 1315-1316.)
Likewise, if there was any error here, it was harmless beyond a
reasonable doubt. The trial court instructed the jury that to find Pitoau
guilty of assault with a firearm or simple assault, the jury had to find beyond
a reasonable doubt that Pitoau “willfully” did an act “that by its nature would
directly and probably result in the application of force to a person.” The court
properly defined “willfully” as meaning “willingly or on purpose.” (CALCRIM
Nos. 875, 915.) The court also instructed the jury that to find the firearm
enhancement allegations true, the jury had to find beyond a reasonable doubt
that Pitoau “intentionally” did a specified act with a firearm. (CALCRIM No.
3146.) Counsels’ closing arguments squarely addressed these concepts. By
finding Pitoau guilty and the enhancement allegations to be true, the jury
necessarily found that he acted “willfully,” “willingly,” “on purpose,” and
“intentionally”—that is, he did not act accidentally. Thus, the failure to
instruct on accident was harmless beyond a reasonable doubt.
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DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DATO, J.
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