People v. Tousant, A156044M

Background

Defendant Jamell Tousant was convicted after jury trial of multiple counts related to an August 15, 2015 Berkeley shooting (assaults with a firearm, shooting at an inhabited dwelling/vehicle) and related firearms-possession offenses; consolidated with separate August 31 traffic-stop charges; sentence 22 years.
Facts: Aug 15 Berkeley shooting (multiple rounds fired toward 2806 Mabel St.); white Impala implicated by witness who recorded its plate; Aug 20 Oakland shooting occurred near 1314 105th Ave; Tousant’s red rented Camaro was found at that scene with shell casings and a loaded magazine nearby and a cellphone and rental agreement inside.
Police searched the Camaro warrantlessly hours after the Oakland shooting, seized Tousant’s cellphone, later (after a limited warrantless examination that revealed a phone number and a photo) obtained a warrant and downloaded phone contents.
Trial evidence included cellphone text/history, ballistics and vehicle links, Tousant’s statements to Oakland Sgt. Sanchez about his son’s earlier murder, and evidence of prior conduct (hospital incident and the Oakland shooting) offered to show motive/common plan.
On appeal Tousant challenged suppression of car/phone evidence, Miranda, admission of uncharged acts, denial of severance, sufficiency of assault evidence, the court’s answer to a jury question, and alleged ineffective assistance/cumulative error.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Suppression of Camaro search & phone seizure	Search was lawful under automobile exception; phone in plain view; warrant later obtained	No probable cause for vehicle search; phone search/seizure unlawful; warrant tainted by illegal pre-warrant phone search; delay in obtaining warrant unreasonable	Denial affirmed: totality supported probable cause to search Camaro and seize phone; limited pre-warrant phone search was illegal but warrant was valid under independent-source/doctrine and seizure delay not unreasonable
Validity/scope of phone search warrant	Warrant affidavit (even excising tainted info) supplied probable cause; officer would have sought warrant absent illegal search	Warrant relied on evidence obtained by illegal phone activation (telephone number/photo); scope overbroad	Warrant upheld: illegally obtained phone info excised; remaining affidavit established probable cause and officers would have pursued the warrant regardless
Miranda (statements to Sgt. Sanchez)	Sanchez’s interview was not interrogation about charged offenses; he lacked knowledge tying Tousant to Berkeley shooting	Statements were custodial and elicited without Miranda; should be excluded	Admission affirmed: although custodial, questioning was about Tousant’s son’s murder and not interrogation reasonably likely to elicit incriminating responses about the charged shootings; no Miranda violation
Admission of uncharged acts (hospital incident; Oakland shooting) under Evid. Code §1101(b)	Prior acts were admissible to show motive, intent, common plan; probative and not unduly prejudicial	Prior acts were prejudicial propensity evidence and should be excluded	Admitted: trial court did not abuse discretion—hospital incident showed motive; Oakland shooting evidence showed common plan and was sufficiently similar; limiting instructions given
Severance of Berkeley assault counts from Oakland firearm-possession counts	Joint trial proper: offenses are same class (firearm-related) and evidence cross-admissible; no undue prejudice	Joinder impermissibly bolstered weaker assault case with stronger firearm-possession evidence (spillover)	Denial affirmed: statutory joinder satisfied; cross-admissibility and overlap of firearm evidence prevented prejudice; no gross unfairness
Sufficiency of evidence for assault convictions (counts 2–4)	Circumstantial and ballistics evidence, witness testimony and scene damage support that victims were in line of fire	Victims were not within line of fire; insufficient proof they were close enough to the house/trajectory	Convictions affirmed: substantial evidence supported that shots were fired into the group and could have hit the named victims
Trial court response to jury question about date phrase "on or about"	Court correctly clarified the relevant date (August 15) after consulting counsel	Court’s answer was inadequate and confused jury	Response adequate: no abuse of discretion; defendant forfeited if counsel approved the response
Ineffective assistance / cumulative error	N/A (defendant asserts counsel failed to preserve objections)	Claims are generic and not shown on direct appeal record	Rejected: defendant did not meet the high direct-appeal burden; issues better raised on habeas; no cumulative error found

Key Cases Cited

People v. Lopez, 8 Cal.5th 353 (2019) (warrantless searches presumptively unreasonable; context for automobile exception)
People v. Farley, 46 Cal.4th 1053 (2009) (probable cause defined as fair probability under totality of circumstances)
People v. Weiss, 20 Cal.4th 1073 (1999) (independent-source doctrine and excising tainted affidavit material)
Ewoldt v. People (People v. Ewoldt), 7 Cal.4th 380 (1994) (common plan/common design doctrine for uncharged acts)
People v. Soper, 45 Cal.4th 759 (2009) (severance standard; balancing prejudice vs. benefits of joinder)
Riley v. California, 573 U.S. 373 (2014) (cellphone searches generally require a warrant; limits on warrantless digital searches)
Illinois v. Gates, 462 U.S. 213 (1983) (totality-of-circumstances test for probable cause for warrants)
Rhode Island v. Innis, 446 U.S. 291 (1980) (definition of interrogation for Miranda purposes)
Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogation requires advisement of rights)
United States v. Ross, 456 U.S. 798 (1982) (automobile exception allows vehicle searches when probable cause exists)