SAN DIEGO — A judge Tuesday put off a decision on whether to dismiss assault charges against a man accused of shooting an off-duty sheriff’s deputy and a passerby in the Gaslamp District following a Metallica concert last year at Petco Park.
A jury in July deadlocked 11-1 in favor of convicting 38-year-old Ray Pitoau on three counts of assault with a deadly weapon. Pitoau was found guilty of being a felon in possession of a firearm, carrying a loaded firearm in public and carrying a concealed firearm.
Last Friday, a different jury said it couldn’t resolve the case, with four jurors voting guilty and eight voting not guilty.
Deputy District Attorney Michael Reilly told Judge Melinda Lasater that community interest would be best served by presenting the case for a third time and getting a verdict.
The prosecutor said authorities are trying to locate Emory Zinga, a friend of Pitoau’s who was with the defendant the night of the Aug. 7, 2017, shooting.
Pitoau testified that he grabbed a gun from Zinga in self-defense because a group of men, including off-duty sheriff’s Deputy Jason Philpot, were advancing on him.
Prosecutors said Philpot, his two brothers and two off-duty Escondido police officers walked past Pitoau on Island Avenue near Sixth Avenue just after 1 a.m., and Pitoau and Philpot’s younger sibling Joshua traded insults. Pitoau allegedly pulled out a gun and pointed it at Joshua before the deputy charged the defendant, according to the off-duty lawman.
Jason Philpot — an 11-year veteran of the Sheriff’s Department — testified that he tried to wrap his arms around Pitoau and get the gun away, but the defendant was able to pull the trigger, wounding the deputy in the upper chest and right arm. A second round also passed through his right arm. One of the rounds ricocheted off the sidewalk and struck Vladimir Shvets, a passerby in San Diego for a convention.
Reilly told the jury that Pitoau — sitting on a rail in front of a barbecue restaurant — had words with Joshua Philpot when he walked in front of the defendant.
“Oh, you’re shaking your head at me,” Pitoau said, according to the prosecutor.
Pitoau put on a pair of black gloves and pulled up his shirt to reveal a gun, Reilly told the jury.
After the shooting, Pitoau escaped through downtown, tried to get on the trolley and posted a message that said, “I shot someone. (They) all over me downtown,” according to the prosecutor.
The gun was recovered the next morning, but Pitoau wasn’t seen for a month, when he was arrested at the border and turned over to U.S. authorities. He had shaved off his beard and cut off two long braids, Reilly said.
Deputy Public Defender Jessica Marshall told the jury that Jason and Joshua Philpot had been drinking all night and were kicked out of a bar shortly before the shooting.
She said her client was standing in front of the barbecue restaurant, eating chips and waiting for a ride, when Joshua Philpot said “something very offensive.” Marshall said the victims’ stories have not been consistent.
Marshall, in asking the judge to dismiss the assault charges, said a third trial would be a “huge waste of time and resources.”
Lasater scheduled a Nov. 27 hearing to announce her decision on whether to dismiss the unresolved counts and to sentence Pitoau on the three weapons charges. The defendant faces up to 29 years to life in prison on those counts, Reilly said.
If convicted of assault charges at a third trial, Pitoau would be facing a maximum of 91 years to life behind bars, according to the prosecutor.