64 Cal.App.5th 804
Cal. Ct. App.2021Background
- In August 2015 two shootings occurred five days apart: an August 15 Berkeley shooting (multiple victims, bullet casings recovered) and an August 20 Oakland shooting; police later linked a rental Camaro found at the Oakland scene to defendant Jamell Tousant by a rental agreement recovered from the car.
- Officers searched the Camaro (unlocked with keys in ignition) a few hours after the Oakland shooting, seized Tousant’s cellphone, and 15 days later obtained a warrant to download its contents after an officer briefly powered on and examined the phone without a warrant.
- Tousant was also stopped Aug. 31 in a Chevrolet Impala sought in the Berkeley investigation; that traffic stop produced a 9mm handgun and a 7.62×39 casing linking him to the Berkeley scene. He was tried on counts arising from the Berkeley shooting and separate firearm-possession counts (consolidated prosecutions).
- At trial the prosecution introduced (1) cellphone records, texts and internet searches, (2) ballistics and license-plate evidence, (3) prior-act evidence (Tousant outside hospital with a shotgun after his son’s homicide; alleged participation in the Oakland shooting), and (4) statements Tousant made to an Oakland sergeant during a custodial interview about his son’s murder.
- The jury convicted Tousant on all counts; the court imposed a 22-year sentence. On appeal Tousant challenged suppression rulings (car and phone), admission of statements and prior acts, denial of severance, sufficiency of certain assault convictions, and the court’s answer to a jury question.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Tousant) | Held |
|---|---|---|---|
| Warrantless search of Camaro (automobile exception) | Probable cause supported search: car parked at scene shortly after shooting, unlocked with keys, nearby casings/magazine, rental agreement ties car to Tousant | No probable cause or nexus to the crime; Camaro differed from suspect car description | Search valid under automobile exception; probable cause existed (affirmed) |
| Seizure and subsequent warrant for cellphone (including pre‑warrant powering on) | Cellphone in plain view in car could be seized; later warrant supported by independent, untainted facts even after excising the unlawful phone power‑on | Initial turning on and viewing phone settings was illegal and fatally tainted the warrant; no probable cause absent that info | Pre‑warrant powering on was illegal and excised, but remaining affidavit established probable cause and independent‑source prong met; warrant and downloaded evidence admissible |
| Admissibility of statements to Oakland Sgt. Sanchez (Miranda/Interrogation) | Sanchez’s questioning was about the son’s murder, not offenses for which Tousant was in custody; questions were not the functional equivalent of interrogation regarding the charged shootings | Custodial questioning should have triggered Miranda because the questioning was reasonably likely to elicit incriminating responses about other shootings | No Miranda violation: Tousant was in custody but objective circumstances showed questions were about an unrelated matter (his son’s murder) and not reasonably likely to elicit incriminating responses about the charged offenses |
| Admission of prior uncharged acts (hospital shotgun incident; Oakland shooting) | Evidence admissible under Evid. Code §1101(b) to show motive, intent, and common plan (retaliation for son’s murder; same targets/gang nexus) | Evidence was prejudicial propensity evidence and should have been excluded under §352 | Trial court did not abuse discretion: prior acts were sufficiently probative of motive and common plan and not unduly prejudicial |
| Denial of severance (joinder of Berkeley and Oakland counts) | Offenses are of the same class (firearms-related) and connected; many items would be cross-admissible; judicial economy favors joinder | Joinder unfairly bolstered a weak Berkeley case with a strong Oakland firearms case causing prejudice | Joinder proper under §954; denial of severance not an abuse of discretion and did not produce prejudice or violate due process |
| Sufficiency of evidence for three assault convictions (shots into group) | Circumstantial and physical evidence (witnesses, casing distribution, location, multiple shots) supported that victims were within the area of gunfire | Victims were not close enough to the house/line of fire to be assaulted by the shots | Substantial evidence supported the convictions for assault with a firearm (convictions affirmed) |
| Trial court response to jury question on date in possession count | Court correctly clarified that “on or about August 15” meant August 15 in this case | Court’s answer was inadequate and caused confusion | Court’s responses were adequate under §1138; no abuse of discretion noted |
Key Cases Cited
- Riley v. California, 573 U.S. 373 (U.S. 2014) (cellphone contents generally require a warrant; limited identity searches discussed)
- Illinois v. Gates, 462 U.S. 213 (U.S. 1983) (totality‑of‑the‑circumstances test for probable cause in affidavits)
- United States v. Ross, 456 U.S. 798 (U.S. 1982) (automobile exception permits search of vehicle areas where evidence may be found)
- California v. Acevedo, 500 U.S. 565 (U.S. 1991) (automobile searches and privacy expectations in vehicles)
- Rhode Island v. Innis, 446 U.S. 291 (U.S. 1980) (definition of interrogation and the functional‑equivalent test for Miranda)
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (custodial interrogation requires advisement of rights)
- Segura v. United States, 468 U.S. 796 (U.S. 1984) (seizure to preserve evidence may be reasonable pending a warrant)
- People v. Farley, 46 Cal.4th 1053 (Cal. 2009) (probable‑cause standard for searches under totality of circumstances)
- People v. Weiss, 20 Cal.4th 1073 (Cal. 1999) (independent source doctrine and excising tainted information from an affidavit)
- People v. Ewoldt, 7 Cal.4th 380 (Cal. 1994) (use of uncharged acts to show common plan/intent)