1 [ 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAY KOLOSETA PITOAU, Case No. 22-cv-01677-MMA (MSB)

12 Petitioner,

ORDER:

13 v.

DENYING PETITION FOR WRIT

14 SEAN MOORE, Warden, et al., OF HABEAS CORPUS; and 15 Respondents. [Doc. No. 1] 16

17 DECLINING TO ISSUE

CERTIFICATE OF

18

APPEALABILITY

19 20 Petitioner Ray Pitoau (“Petitioner” or “Pitoau”) is a state prisoner proceeding pro 21 se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Pitoau 22 challenges his convictions for assault and assault with a firearm in San Diego Superior 23 Court case no. SCD273138. The Court has read and considered the Petition [Doc. No. 1], 24 the Answer and Memorandum of Points and Authorities in Support of the Answer [Doc. 25 Nos. 6, 6-1], the Traverse [Doc. No. 10], the lodgments and other documents filed in this 26 case, and the legal arguments presented by both parties. For the reasons discussed below, 27 the Court DENIES the Petition and DISMISSES the case with prejudice. The Court also 28 DECLINES to issue a Certificate of Appealability. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 This Court gives deference to state court findings of fact and presumes them to be 3 correct; Petitioner may rebut the presumption of correctness, but only by clear and 4 convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Greene v. Henry, 5 302 F.3d 1067, 1072 (9th Cir. 2002) (“Under the AEDPA, we are required to ‘defer to 6 state court findings of fact unless based on an unreasonable determination of the facts in 7 light of the evidence presented’ in the state court proceedings.”). The state appellate 8 court recited the facts as follows: 9 On August 6, 2017, brothers Jason, Joshua, and Stephen attended a concert at Petco Park. They drank alcohol before, during, and likely after 10 the concert. 11 After the concert, around midnight, the brothers met up with some of 12 Jason’s friends in the nearby Gaslamp Quarter. Jason and the friends were 13 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 14 an argument with other patrons. The group decided to call it a night a little 15 after 1:00 a.m.

16 As the group walked down the sidewalk, Joshua passed Pitoau, who 17 was sitting on a handrail outside a restaurant. The jury heard conflicting testimony about what happened next. 18

19 According to prosecution witnesses, Pitoau started a verbal altercation, hopped off the handrail, raised his shirt to reveal a handgun 20 tucked in his waistband, and approached Joshua. When Joshua said he did 21 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 22 disarm Pitoau. Jason was unsuccessful, and Pitoau fired two shots, striking 23 Jason and an uninvolved bystander, both of whom were treated for their wounds at hospitals. 24

25 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 26 Joshua left and quickly returned with his group of friends. The group 27 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 28 1 outside the restaurant. When he bumped into Emery, Pitoau felt Emery holding something that turned out to be a gun. Pitoau grabbed the gun, 2 pointed it toward the ground – never at the group – and repeatedly told the 3 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 4 struggle, the gun discharged twice. 5 Pitoau ran off through downtown, ducking into a parking garage to 6 change his shirt and hairstyle. In a secluded area, he abandoned the gun by 7 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 8 media, stating, “I shot someone. They all over me downtown.” Pitoau 9 hitchhiked home, then fled the next day to Mexico.

10 Police found the gun and linked it to Pitoau through DNA. DNA 11 analysis excluded Pitoau’s friend, Emery, as a possible contributor, and further excluded Jason as a contributor from one area of the gun, but 12 indicated limited support for inclusion as to another area of the gun. 13 About one month after the incident, Pitoau was apprehended in 14 Mexico and brought back to the United States. 15 16 Doc. No. 7-78 at 4–5. 17 On February 8, 2018, the San Diego County District Attorney’s Office filed an 18 Information charging Ray Koloseta Pitoau with three counts of assault with a firearm, a 19 violation of California Penal Code (“Penal Code”) § 245(a)(2) (counts one through 20 three), one count of carrying a loaded firearm, a violation of Penal Code § 25850(a) 21 (count four), one count of possession of a firearm by a felon, a violation of Penal Code 22 § 29800(a(1) (count five), and one count of possession a concealed firearm, a violation of 23 Penal Code § 25400(a)(2) (count six). Doc. No. 7-1 at 25–31. The Information also 24 alleged that as to counts one, two, and three, that he personally used a firearm, within the 25 meaning of Penal Code §§ 12022.5(a) and 1192.7(c)(8), as to counts one and two, Pitoau 26 personally inflicted great bodily injury, within the meaning of Penal Code §§ 12022.7(a) 27 and 1192.7(c)(8), to count four he was not the registered owner of the firearm he 28 possessed, within the meaning of Penal Code § 25850(c)(6), as to counts four and six he 1 had a prior robbery conviction, within the meaning of Penal Code §§ 25850(c)(1) and 2 25400(c)(1), and as to counts four, five and six that he was armed with a firearm during 3 the commission of the offense, within the meaning of Penal Code §§ 667(e)(2)(C)(iii), 4 and 1170.12(c)(2)(C)(iii). Id. Pitoau was also alleged to have suffered four prior 5 convictions for which he served a prison sentence, within the meaning of Penal Code §§ 6 667.5(b) and 668, two prior convictions for serious felonies, within the meaning of Penal 7 Code § 667(a)(1), 668, and 1192.7(c), and two strike prior convictions, within the 8 meaning of Penal Code §§ 667(b)–(i), 668, and 1170.12. Id. 9 Pitoau was tried by a jury three times. Doc. No. 7-51 at 62–72, 201–08. The first 10 jury found Pitoau guilty of counts four, five, and six and found the associated 11 enhancement allegations to be true, but it did not reach a verdict on counts one, two, and 12 three. See People v. Pitoau, No. D075068, 2020 WL 1861668, at *1 (Cal. Ct. App. Apr. 13 14, 2020). At a second trial, the jury again failed to reach a verdict on counts one, two, 14 and three; the third jury found Pitoau guilty of counts one, and two, and the allegations 15 associated with those counts to be true; Pitoau admitted the prior convictions as charged. 16 Doc. No. 7-3 at 55–56; Doc. No. 7-51 at 200–07. He was found not guilty of count three. 17 Doc. No. 7-51 at 208. The total sentence he received on all counts and allegations was 18 fifty years-to-life plus twenty-one years on counts one through three, and twenty-five 19 years-to-life plus four years on counts four through six. Id. at 123–25, 210–12.1 20 Pitoau appealed his convictions on counts one through three to the California Court 21 of Appeal, which affirmed his convictions in a written opinion. Doc. Nos. 7-75–7-78. 22 He then filed a petition for review in the California Supreme Court, which issued a 23 summary denial. Doc. Nos. 7-79–7-80. He filed his federal habeas corpus petition in this 24 Court on October 26, 2022. Doc. No. 1. Respondent filed an Answer and Memorandum 25

26 1 Following his convictions on counts four, five, and six, Pitoau was sentenced on those 27 counts and appealed those convictions and sentences separately. See People v. Pitoau, No. D075068, 2020 WL 1861668, at *1 (Cal. Ct. App. Apr. 14, 2020). That appeal is not 28 1 in Support of the Answer on January 31, 2023, and Pitoau filed a Traverse on April 3, 2 2023. Doc. Nos. 6, 6-1, 10. 3 II. ANALYSIS 4 A. Legal Standard 5 This Petition is governed by the provisions of the Antiterrorism and Effective 6 Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). 7 Under AEDPA, a habeas petition will not be granted with respect to any claim 8 adjudicated on the merits by the state court unless that adjudication: (1) resulted in a 9 decision that was contrary to, or involved an unreasonable application of, clearly 10 established federal law; or (2) resulted in a decision that was based on an unreasonable 11 determination of the facts in light of the evidence presented at the state court proceeding. 12 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). Clearly established federal 13 law, for purposes of § 2254(d), means “the governing principle or principles set forth by 14 the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 15 538 U.S. 63, 72 (2003). 16 A federal habeas court may grant relief under the “contrary to” clause if the state 17 court applied a rule different from the governing law set forth in Supreme Court cases, or 18 if it decided a case differently than the Supreme Court on a set of materially 19 indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant 20 relief under the “unreasonable application” clause if the state court correctly identified 21 the governing legal principle from Supreme Court decisions but unreasonably applied 22 those decisions to the facts of a particular case. Id. In deciding a state prisoner’s habeas 23 petition, a federal court is not called upon to decide whether it agrees with the state 24 court’s determination; rather, the court applies an extraordinarily deferential review, 25 inquiring only whether the state court’s decision was objectively unreasonable. See 26 Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Andrade, 538 U.S. at 75 (the “unreasonable 27 application” clause requires that the state court decision be more than incorrect or 28 erroneous; to warrant habeas relief, the state court’s application of clearly established 1 federal law must be “objectively unreasonable”). The Court may also grant relief if the 2 state court’s decision was based on an unreasonable determination of the facts. 28 U.S.C. 3 § 2254(d)(2). 4 Where there is no reasoned decision from the state’s highest court, the Court 5 “looks through” to the last reasoned state court decision and presumes it provides the 6 basis for the higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 7 797, 805–06 (1991). If the dispositive state court order does not “furnish a basis for its 8 reasoning,” the Court must conduct an independent review of the record to determine 9 whether the state court’s decision is contrary to, or an unreasonable application of, clearly 10 established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) 11 (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 12 336 F.3d 848, 853 (9th Cir. 2003 13 B. Discussion 14 Pitoau raises one claim in his Petition, contending he was denied a fair trial when 15 the state court refused to instruct the jury on the defense of accident. Doc. No. 1 at 6. 16 Respondent contends Pitoau is not entitled to relief because the state court’s resolution of 17 the claim was neither contrary to, nor an unreasonable application of, clearly established 18 Supreme Court law. Doc. No. 6-1. 19 Pitoau raised his claim in the Petition for Review he filed in the California 20 Supreme Court, arguing that the trial court erred when it denied the defense request to 21 instruct the jury on the defense of accident. Doc. No. 7-79. The California Supreme 22 Court summarily denied the petition, and thus this Court must “look through” to the last 23 reasoned state court decision, the California Court of Appeal’s opinion, to determine 24 whether the denial of this claim was contrary to, or an unreasonable application of, 25 clearly established Supreme Court law. Ylst, 501 U.S. at 805–06. That court wrote: 26 We need not decide whether substantial evidence supported Pitoau’s accident theory–and, thus, whether the trial court erred by refusing to 27 instruct on that theory–because we conclude the omission of the instruction 28 was harmless beyond a reasonable doubt. 1 We find People v. Jones (1991) 234 Cal.App.3d 1303 (Jones) highly instructive. The defendant in Jones was convicted of attempted 2 premeditated murder after he suddenly opened his car door during a traffic 3 stop and pointed a shotgun at a sheriff’s head. (Id. at pp. 1306, 1308.) When the deputy “made a sweeping motion with his left hand to try to knock 4 the shotgun barrel away . . . , the shotgun went off, striking [the deputy].” 5 (Ibid.) When the defendant was apprehended, he told the arresting officer, “I didn’t mean to shoot him.” (Id. at pp. 1308–1309.) 6

7 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 8 misfortune.’” (Jones, supra, 234 Cal.App.3d at p. 1313.) The Court of 9 Appeal agreed there was error because “a reasonable juror could have concluded” “that the shotgun discharged by accident, as a result of being 10 struck by [the deputy].” (Id. at p. 1314.) [fn.2 omitted]. But the court found 11 the error “was harmless beyond a reasonable doubt” (id. at p. 1316) because “other proper instructions adequately guide[d] the jury in reaching factual 12 determinations on those issues which would have been presented to the jury 13 by the omitted instruction” (id. at p. 1314). Specifically, the trial court instructed the jury that to find the attempted murder was premeditated, the 14 jury would have to find it was “willful, deliberate and premeditated.” (Id. at 15 p. 1315.) “‘Willful’ was properly defined for the jury as meaning ‘intentional.’” (Ibid.) The appellate court reasoned that by finding that the 16 defendant had acted willfully, “it [was] clear, beyond credible argument, that 17 the jury necessarily rejected the evidence . . . that would have supported a finding to the effect that defendant’s ‘accident and misfortune’ defense . . . 18 was valid, thus implicitly resolving the question of that defense adversely to 19 defendant.” (Id. at pp. 1315–1316.)

20 Likewise, if there was any error here, it was harmless beyond a 21 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 22 reasonable doubt that Pitoau “willfully” did an act “that by its nature would 23 directly and probably result in the application of force to a person.” (CALCRIM Nos. 875, 915.) The court also instructed the jury that to find 24 the firearm enhancement allegations true, the jury had to find beyond a 25 reasonable doubt that Pitoau “intentionally” did a specified act with a firearm. (CALCRIM No. 3146.) Counsels’ closing arguments squarely 26 addressed these concepts. By finding Pitoau guilty and the enhancement 27 allegations to be true, the jury necessarily found that he acted “willfully,” “willingly,” “on purpose,” and “intentionally” – that is, he did not act 28 1 accidentally. Thus, the failure to instruct on accident was harmless beyond a reasonable doubt. 2

3 Doc. No. 7-18 at 10–13. 4 To the extent Pitoau is challenging the state court’s application of California 5 evidentiary law, he is not entitled to relief. Federal habeas relief is not available for 6 alleged violations of state law. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is 7 not the province of a federal habeas court to reexamine state-court determinations on 8 state-law questions.”). The state court did not resolve the question of whether the failure 9 to instruct the jury on the defense of accident was federal constitutional error, opting to 10 analyze any potential error under Chapman v. California, 386 U.S. 18 (1967). Chapman 11 held that “before a federal constitutional error can be held harmless, the court must be 12 able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman, 386 13 U.S. at 24.2 The Court must therefore analyze Pitoau’s constitutional challenge to the 14 failure to give an instruction on the defense of accident de novo. Tamplin v. Muniz, 894 15 F.3d 1076, 1086 (9th Cir. 2018) (“if the last reasoned decision did not address a properly

16 raised question, [the district court must] decide the question de novo”) (citing Viscotti v. 17 Martel, 862 F.3d 749, 760 (9th Cir. 2016) and Frantz v. Hazey, 533 F.3d 724, 738 (9th 18 Cir. 2008)). 19 As a general proposition, a defendant is entitled to an instruction as to any 20 recognized defense for which there exists evidence sufficient for a reasonable jury to find 21 in his favor. Mathews v. United States, 485 U.S. 58, 63 (1988) (citing Stevenson v. 22 United States, 162 U.S. 313 (1896)). The Ninth Circuit has noted that “[u]nder the Due 23 Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with 24 25 2 Although the state appellate court did not cite directly to Chapman, it did cite to People 26 v. Lujano, 15 Cal. App. 5th 187, 195–96 (2017) for the standard of review it was applying. Lujano cited to Chapman as the proper standard of review for a jury 27 instruction error that is of constitutional magnitude. Lujano, 187 Cal. App. 5th at 195– 28 96. 1 prevailing notions of fundamental fairness . . . [which] require that criminal defendants be 2 afforded a meaningful opportunity to present a complete defense.” Bradley v. Duncan, 3 315 F.3d 1091, 1098–99 (9th Cir. 2002) (citing Mathews, 485 U.S. at 63 and California 4 v. Trombetta , 467 U.S. 479, 485 (1984)). When determining whether error occurred, 5 however, the Court must consider the jury instructions as a whole, Estelle, 502 U.S. at 72. 6 The jury instruction at issue cannot be judged in isolation, but rather “must be considered 7 in the context of the instructions as a whole and the trial record.” Waddington v. 8 Sarausad, 555 U.S. 179, 191 (2009) (quoting Estelle, 502 U.S. at 72) (internal quotation 9 marks omitted). “A habeas petitioner must show that the alleged instructional error ‘had 10 substantial and injurious effect or influence in determining the jury’s verdict’” in order to 11 obtain relief. Clark v. Brown, 450 F.3d 898, 905 (9th Cir. 2006) (quoting Brecht v. 12 Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted); see also Beardslee v. 13 Woodford, 358 F.3d 560 578 (9th Cir. 2004) 14 Pitoau was found guilty of assault with a firearm and simple assault. Doc. No. 7- 15 51 at 200–07. Assault is defined as “an unlawful attempt, coupled with a present ability, 16 to commit a violent injury on the person of another.” Cal. Penal Code § 240. In order to 17 prove a defendant committed an assault, the prosecution must prove, beyond a reasonable 18 doubt, that: 19 1. The defendant did an act that by its nature would directly and probably 20 result in the application of force to a person; 21 2. The defendant did that act willfully; 22 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that this act by its nature would directly and 23 probably result in the application of force to someone; 24 4. When the defendant acted, he had the present ability to apply force with a 25 firearm to a person; 26 AND 27 5. The defendant did not act in self-defense 28 Doc. No. 7-1 at 86 (CALCRIM No. 915). 1 The crime of assault with a firearm has all of the elements of simple assault 2 with the additional requirement that the “act” committed by the defendant in 3 paragraph one be done “with a firearm.” Doc. No. 7-1 at 82 –23 (CALCRIM No. 4 875). 5 The instructions given to the jury, which included CALCRIM Nos. 875 and 915, 6 define “willfully” as “[an act done] willingly or on purpose,” and that the prosecution 7 need not show the defendant intended to break the law or hurt someone. Doc. No. 7-1 at 8 82–83, 86 (CALCRIM Nos. 875, 915). The defense requested the jury be given 9 CALCRIM No. 3404 on the defense of accident, which is defined as follows: 10 The defendant is not guilty of [insert crime[s]] if (he/she) acted . . . without the intent required for that crime, but acted instead accidentally. 11 You may not find the defendant guilty of [insert crime[s]] unless you are 12 convinced beyond a reasonable doubt that (he/she) acted with the required intent.] 13

14 See Doc. No. 7-70 at 152–53. 15 In order to find Pitoau guilty of simple assault and assault with a firearm, the 16 instructions required the jury to find, beyond a reasonable doubt, that Pitoau acted 17 “willfully” or “on purpose,” and the jury instructions for the firearm enhancements 18 required the jury to find that Pitoau acted “intentionally.” Doc. No. 7-1 at 82–23 19 (CALCRIM No. 875), 84–85 (CALCRIM No. 3146), 86 (CALCRIM No. 915). For the

20 jury to find Pitoau guilty of the assault and assault with a firearm charges, as well as find 21 the weapons enhancements to be true, they necessarily had to have found that Pitoau’s 22 actions were “on purpose” and “intentional” and therefore not accidental. Accordingly, 23 considering the jury instructions as a whole, as this Court is required to do under Estelle, 24 502 U.S. at 72, the lack of an explicit instruction on the defense of accident did not have 25 a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 26 507 U.S. at 637. 27 Further, the state court’s conclusion that any error was harmless beyond a 28 reasonable doubt was not contrary to, or an unreasonable application of, clearly 1 established Supreme Court law. See 28 U.S.C. § 2254(d)(2). On federal habeas review, 2 a federal court must review a state court’s harmlessness determination pursuant to 3 Chapman under AEDPA’s standard, that is, it may not overturn the decision unless the 4 court “applied Chapman in an ‘objectively unreasonable manner.’” Davis v. Ayala, 576 5 U.S. 257, 269 (2015) (quoting Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (per curium)). 6 The Supreme Court explained as follows: 7 When a Chapman decision is reviewed under AEDPA, “a federal court may not award habeas relief under § 2254 unless the harmlessness determination 8 itself was unreasonable.” Fry [v. Pliler], supra, [551 U.S.] at 119 [citation 9 omitted] (emphasis in original). And a state-court decision is not unreasonable if “‘fairminded jurists could disagree’ on [its] correctness.” 10 [Harrington v.] Richter, supra, [562 U.S.] at 101 [citations omitted]. [A 11 petitioner] therefore must show that the state court’s decision to reject his claim “was so lacking in justification that there was error well understood 12 and comprehended in existing law beyond any possibility of fairminded 13 disagreement.” 562 U.S., at 103 [citation omitted]. 14 Id. 15 Pitoau has not shown state court’s decision to reject his claim “was so lacking in 16 justification that there was an error well understood and comprehended in existing law 17 beyond any possibility of fairminded disagreement.” Davis, 576 U.S. at 269. As 18 discussed above, in order for the jury to find Pitoau guilty of the assault and assault with 19 a firearm charges, as well as find true the firearm allegations, the jury had to find, beyond 20 a reasonable doubt, that Pitoau acted “intentionally” and “on purpose.” Doc. No. 7-1 at 21 82–23 (CALCRIM No. 875), 84–85 (CALCRIM No. 3146), 86 (CALCRIM No. 915). 22 Thus, as the state court reasonably concluded, the jury’s guilty verdicts meant they did 23 not find Pitoau’s actions were accidental. Accordingly, the state court’s denial of this 24 claim was therefore neither contrary to, nor an unreasonable determination of, clearly 25 established Supreme Court law, and Pitoau is not entitled to relief. Bell, 535 U.S. at 694; 26 Davis, 576 U.S at 269. 27 / / / 28 / / / ] V. CONCLUSION 2 For the foregoing reasons, the Petition is DENIED. Rule 11 of the Rules Following 3 U.S.C. § 2254 require the District Court to “issue or deny a certificate of appealability 4 || when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254 (West 5 ||2019). A COA will issue when the petitioner makes a “substantial showing of the denial 6 || of a constitutional right.” 28 U.S.C. § 2253 (West 2019); Pham v. Terhune, 400 F.3d 740, 7 || 742 (9th Cir. 2005). A “substantial showing” requires a demonstration that “‘reasonable 8 ||jurists would find the district court’s assessment of the constitutional claims debatable or 9 || wrong.’” Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 2002) (quoting Slack v. McDaniel, 10 ||529 U.S. 473, 484 (2000)). Here, the Court concludes Pitoau has not made the required 11 ||showing, and therefore a certificate of appealability is DENIED. 12 IT IS SO ORDERED. 13 || Dated: January 29, 2024 14 Mai ; if, 15 HON. MICHAEL M. ANELLO 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28