People v. Tousant ( 2021 )

Filed 5/26/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A156044
v.
JAMELL TOUSANT, (Alameda County
Super. Ct. No. 178808)
Defendant and Appellant.
A jury convicted defendant Jamell Tousant of numerous counts related
to a shooting targeting several individuals in a residential area of Berkeley
and to his possession of firearms. On appeal, Tousant primarily challenges
the denial of his motion to suppress evidence downloaded from his cellphone,
seized after an allegedly illegal search of his car left at the scene of an
Oakland shooting. He also identifies several purportedly erroneous rulings,
including the admission of incriminating statements to a police officer,
admission of uncharged acts, denial of a motion to sever, and an improper
response to a jury question. There was no error in these rulings. We also
reject Tousant’s claim the evidence supporting three assault convictions was
insufficient and affirm.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for
publication with the exception of parts III through VIII of the Discussion.
1
BACKGROUND
In January 2016, the Alameda County District Attorney filed an eight-
count information, charging Tousant for crimes related to an August 15, 2015
shooting. This included four counts of assault with a firearm (Pen. Code,
§ 245, subd. (a)(2)1 (counts 1-4)); two counts of shooting at an inhabited
dwelling (§ 246 (counts 5-6)); one count of shooting at an unoccupied vehicle
(§ 247, subd. (b) (count 7)); and one count of possession of a firearm by a felon
(§ 29800, subd. (a)(1) (count 8)). The information further alleged an
enhancement for personal use of a firearm and causing great bodily injury for
the assault and shooting of the dwelling (§§ 12022, 12022.5, subd. (a),
12022.7, 12022.53).
In July 2016, an additional three-count information was filed related to
an August 31, 2015 traffic stop, alleging Tousant was a felon carrying a
concealed, loaded, and unregistered firearm in a vehicle (§ 25400,
subds. (a)(1), (c)(1), (c)(6) (count 9)); carrying a loaded, unregistered firearm
on his person in a city (§ 25850, subds. (a), (c)(1), (c)(6) (count 10)); and
possessing a firearm (§ 29800, subd. (a)(1) (count 11)). The two cases were
later consolidated. The evidence below was revealed at a 2018 jury trial.
I.
Murder of Tousant’s Son
In April 2015, Tousant’s son, Tousant Jr., was shot and killed as the
result of possible gang violence. To prevent retaliatory shootings, undercover
police surveilled the hospital where Tousant Jr. was brought for treatment
but ultimately died. One officer witnessed Tousant standing outside the
hospital, holding a long-barreled shotgun and an ammunition belt with
1All further statutory references are to the Penal Code unless
otherwise stated.
2
shotgun rounds. Tousant was upset and agitated, at one point loudly stating,
“Fuck that. Fuck the police.”
Oakland Sergeant Leonel G. Sanchez, who was investigating
Tousant Jr.’s murder, later sought information from Tousant. Sanchez asked
Tousant to contact him if he discovered or received any helpful information,
cautioned Tousant to not take matters “into his own hands,” and urged him
allow the Oakland Police Department to investigate his son’s death. Aside
from expressing his belief Tousant Jr.’s death may have been related to a dice
game, Tousant did not provide Sanchez any information at that time.
Tousant nonetheless undertook his own investigation. He believed his
son had a feud with the Five Finga Mafia, a gang in Berkeley. Tousant Jr.’s
friends confirmed the Five Finga Mafia threatened them after they took a
chain and a watch from the gang’s members. Tousant searched for
information about Five Finga Mafia, eventually identifying people associated
with them. Members of the Five Finga Mafia included Nigel Blackwell and
Kevin Greene. Tousant later came to believe that Nigel Blackwell killed his
son.
II.
Berkeley Shooting
The evening of August 15, 2015, Jocko Milan, Rashad Jacob,2 David
Conerly and Kevin Greene were standing outside 2806 Mabel Street, a house
in Berkeley across the street from San Pablo Park. At approximately
6:30 p.m., a white, four-door vehicle pulled up in front of the house. From the
car window, the passenger fired 10 to 15 shots from a long-barreled gun
2There is a discrepancy in the record regarding the spelling of Rashad
Jacob’s name. We adopt the spelling of his name used in the information and
medical records, “Rashad Jacob.”
3
towards the house where the four men congregated. Greene and Jacob ran
away and jumped over a fence. Jacob was shot in the leg. One of the men
ran out of the house’s front yard and continued down the street. The driver
got out of the white vehicle and fired approximately 5 to 10 shots from a
handgun at the fleeing man, who eventually hid behind another car. The
driver then got back into the car and drove away. At that point, Conerly
jumped into a friend’s car and drove away.
In another car, a witness who was waiting at a traffic light nearby
heard the gunshots. That witness soon noticed the white, four-door vehicle
pull up beside his car, drive on the wrong side of the road, and slowly drive
through the red light. This witness wrote down the license plate number,
6AAY078, which was later determined to be the license plate for Tousant’s
car.
Police recovered 10 bullet casings from the scene of the shooting—seven
7.62 by 39-caliber casings, and three .45-caliber casings. Records confirmed
that Tousant’s cellphone was near San Pablo Park at both 6:17 p.m. and
6:27 p.m. the day of the shooting. Shortly after the shooting, Tousant and his
girlfriend, Hillary Yamitch, exchanged a series of messages. In one, Tousant
texted, “I’m Hot[.] Did something trying to see if the police come over.”
Yamitch responded, “[W]hat? I thought you said you weren’t going to do
anything.” Tousant denied taking any actions, but again asked Yamitch
whether police were at their house. Tousant stated, “I can’t worry about
justice for my son & worry about your feelings to [sic] I tryed [sic]. But for
once I’m going to take my son [sic] side.”
4
III.
Uncharged Oakland Shooting
At approximately 4:30 a.m. on August 20, 2015, Bruce McMahan
backed his car out of the driveway from his house at 1312 105th Avenue in
Oakland—a driveway shared with his neighbors living at 1314 105th Avenue.
Someone then jumped out from behind a car on the street and started
shooting at him. Several bullets pierced through McMahan’s car but did not
injure him. He panicked and quickly reversed his car. While backing up,
McMahan saw another man directly across the street. The shooter and the
man standing across the street then got into a white four-door vehicle and
drove away.
From the scene of this shooting, police recovered 14 9-millimeter shell
casings, a loaded semiautomatic handgun magazine, and two unfired 7.62 by
39-millimeter bullets. They also found Tousant’s red Chevrolet Camaro
rental car parked across the street from McMahan’s house, blocking a
resident’s driveway, and only a few feet from the shell casings. Police
searched the car and recovered, among other things, the rental agreement for
the car and Tousant’s cellphone.
One of Tousant’s contacts had sent him a message with the address
1314 105th Avenue—the address of the Oakland shooting. The contact, at
Tousant’s request, had confirmed the address belonged to “Nigel.” After
reviewing the internet search history on Tousant’s cellphone, the police
determined Tousant had looked up the 1314 105th Avenue address at
10:57 p.m. on August 19, five hours before the Oakland shooting occurred. In
one text message sent two days before the shooting, Tousant stated, “Brah,
it’s serious” and “Bring my gun. I’m on 9 Ave.”
5
IV.
August 31, 2015 Traffic Stop
On August 31, 2015, Tousant and two other people were sitting in his
parked Chevrolet Impala while in Oakland. An Oakland police officer
checked the license plate number, 6AAY078, and confirmed Berkeley police
were seeking the car in relation to an unspecified violent crime. The officer
then performed a traffic stop of Tousant’s car, detained Tousant and the
other passengers, and informed Berkeley police about the stop. The Berkeley
police arrived and searched the car, yielding a loaded 9-millimeter handgun
and a 7.62 by 39-caliber shell casing, the same caliber bullet as one of the
guns used in the Berkeley shooting.
V.
Defense Case
Tousant testified that when his son was killed on April 28, 2015, he
stood outside the hospital with a shotgun and ammunition because he
wanted to protect other members of his family from possible gang violence.
He acknowledged meeting with Sanchez, agreed to help with the police
investigation, and started gathering information about possible suspects and
motives relevant to his son’s killing. While he admitted researching the Five
Finga Mafia and Kevin Greene, he disavowed any knowledge of Greene’s
residence.
Tousant admitted he was near San Pablo Park on August 15, 2015, the
day of the Berkeley shooting, but claimed he was visiting his girlfriend.
Upon hearing the gunshots, he left the area and drove to Oakland. At the
time, he was using his Camaro rather than his Impala. He had lent the
Impala to a man named “Fresh.” Later that night, Tousant discovered his
Impala had been involved in the Berkeley shooting. He texted Yamitch
6
because he feared the car would connect him to the Berkeley shooting. He
further explained that when he texted “Did something,” he was referring to
lending his Impala to Fresh.
Tousant also acknowledged that he was at the scene of the Oakland
shooting—where he believed Nigel Blackwell lived—on August 20, 2015. He
arrived at approximately 3:00 a.m., parked his Camaro across the street,
stayed there for approximately one hour before he walked around the block to
look for Nigel Blackwell’s car. When he later heard gunshots, Tousant fled on
foot, leaving his Camaro because he “didn’t want to deal with it.”
VI.
Verdict and Sentencing
The jury convicted Tousant of all counts but found the personal-use
firearm allegations not true. The trial court imposed a sentence of 22 years
in state prison. This timely appeal followed.
DISCUSSION
I.
The Trial Court Properly Rejected Tousant’s Motion to Suppress
Evidence Obtained from His Car and Cellphone.
Tousant claims the trial court erroneously denied his motion to
suppress evidence obtained after the Oakland shooting and in violation of his
Fourth Amendment right to be free from unreasonable searches and seizures.
(U.S. Const., 4th Amend.) After assessing each aspect of the search and
seizure, we disagree.
A. Standard of Review
A warrantless search is presumptively unreasonable unless it falls
within a “ ‘specifically established and well-delineated’ ” exception to the
warrant requirement. (People v. Lopez (2019) 8 Cal.5th 353, 359; U.S. Const.,
4th Amend.) “Evidence obtained from a search or seizure in violation of the
7
Fourth Amendment must be excluded from use at a criminal trial only if
required by federal law.” (People v. Barnes (2013) 216 Cal.App.4th 1508,
1513.) A defendant may move to suppress evidence obtained without a
warrant as unreasonable. (§ 1538.5, subd. (a)(1)(A).) The prosecution must
demonstrate a legal justification for the search. (People v. Evans (2011)
200 Cal.App.4th 735, 742.) When reviewing a ruling on a suppression
motion, we consider the record in the light most favorable to the trial court’s
decision and defer to its factual findings if supported by substantial evidence.
(People v. Woods (1999) 21 Cal.4th 668, 673-674.) We independently review
whether the search or seizure was reasonable. (Ibid.)
B. The Relevant Facts and Proceedings Below
Police engaged in a warrantless search of Tousant’s Camaro rental car
a few hours after the Oakland shooting. The car was parked directly across
the street from McMahan’s house. The resident who lived across the street
from McMahan informed Oakland police that the car was not there when he
left for work at approximately 2:00 a.m. When he returned home at
approximately 5:00 a.m., he found the car partially blocking his driveway.
He did not recognize the car, and no one came to retrieve it after the
shooting. Officer Fuentes, who arrived on the scene, believed the car was
connected to the shooting. The doors to the car were unlocked and the keys
were in the ignition. A police technician entered the car, and once inside, saw
a cellphone and some clothing and found a rental agreement bearing
Tousant’s name in the car’s center console. The officer collected these items
and took them to the police department.
On September 2, Officer Lorena Arreola, who had been investigating
Tousant and his potential involvement in the Oakland shooting, turned on
the seized cellphone to identify its phone number. She retrieved the number
8
by looking through the settings folder on the phone. She also found a
photograph of Tousant’s driver’s license on the phone. A computer program
used for identifying phone subscribers by their telephone numbers indicated
the cellphone belonged to Tousant. Arreola then used this cellphone number
and other details of her investigation of Tousant to write an affidavit in
support of a search warrant of the cellphone. A warrant issued on
September 4, and Arreola downloaded the cellphone’s contents, including
Tousant’s photos, internet search history and the text messages between
Tousant, Yamitch, and other contacts.
At a preliminary hearing before a magistrate, Tousant moved to quash
the warrant and suppress this evidence (§ 1538.5). The magistrate held that
Tousant had standing to challenge the search of the car, finding he did not
abandon it. But the magistrate summarily denied the suppression motion.
Tousant’s trial counsel renewed the motion to suppress (§ 1538.5, subd. (i)).
Like the magistrate, the trial court found Tousant did not abandon the car
but denied the motion.
C. The Search of Tousant’s Car Was Justified.
Tousant contends there was no probable cause to search his Camaro
without a warrant. We find the search and seizure justified under the
automobile exception to the warrant requirement.
That exception authorizes law enforcement to conduct a warrantless
search of any area of a vehicle if there is probable cause to believe it contains
evidence of criminal activity or contraband. (People v. Lopez, supra, 8 Cal.5th
at p. 372; U.S. v Ross (1982) 456 U.S. 798, 799-800.) “Probable cause to
search exists when, based upon the totality of the circumstances . . . ‘there is
a fair probability that contraband or evidence of a crime will be found in a
particular place.’ ” (People v. Farley (2009) 46 Cal.4th 1053, 1098 (Farley);
Illinois v. Gates (1983) 462 U.S. 213, 230-239.) The automobile exception is
9
rooted in the differences between vehicles and dwellings—vehicles are
mobile, creating a risk evidence may be moved or lost while officers seek out
a search warrant. (California v. Acevedo (1985) 500 U.S. 565, 569.) The
rationale for this exception evolved, recognizing there is a lesser expectation
of privacy in a vehicle than a dwelling. (California v. Carney (1985) 471 U.S.
386, 391.) Decisions upholding warrantless searches of vehicles thus do not
distinguish between searches conducted on parked vehicles or vehicles that
have been stopped by police on a highway. (People v. Superior Court
(Overland) (1988) 203 Cal.App.3d 1114, 1119.)
Here, law enforcement could reasonably conclude the Camaro was
connected to the shooting and could contain evidence relevant to the crime.
(Cf. People v. Superior Court (Hampton) (1968) 264 Cal.App.2d 794, 798
[search of vehicle reasonable where witness identified car as belonging to
potential suspect of burglary, even though intruder fled on foot].) The trial
court found the car was parked in a haphazard way, partially blocking a
resident’s driveway and directly across the narrow street from where
McMahan’s truck was shot. It was there when Officer Fuentes arrived
shortly after 4:30 a.m. The resident informed Fuentes that he did not
recognize the car and it had not been parked there at approximately
2:00 a.m. when he left for work. The officer conducted a record check of the
license plate and discovered it was a rental car. The doors were unlocked,
and the keys were in the ignition, suggesting that the driver left the car
quickly. Shell casings and a loaded firearm magazine were located on the
street a few feet from the car. Across the street from the Camaro was a
vehicle riddled with bullet holes that had crashed into two parked cars.
These circumstances—the Camaro’s proximity to the target of the
shooting, bullet casings, and loaded magazine, its arrival on the scene shortly
10
before the shooting, its unfamiliarity to nearby residents, and the indications
it was a rental car, which the driver hastily parked and fled—in their totality
established “a fair probability” that the vehicle and its occupants were
connected to the shooting and that the car would contain evidence of that
crime. (See Farley, supra, 46 Cal.4th at p. 1098.) We agree with the
magistrate that there was probable cause to search the Camaro.
Tousant disputes this conclusion by narrowly examining the individual
circumstances one by one, arguing none of them alone establishes probable
cause. For instance, he claims the Camaro’s proximity to the shooting and
bullet casings does not itself establish probable cause for an automobile
search. He further contends the red Camaro is unconnected to the Oakland
shooting because it does not match the description of the suspect’s vehicle—
an older, white four-door sedan. This analysis is flawed. The relevant
inquiry is whether the totality of the circumstances would lead a person of
“ordinary caution or prudence to believe, and conscientiously to entertain, a
strong suspicion that the object of the search is in the particular place to be
searched.” (People v. Dumas (1973) 9 Cal.3d 871, 885.) Here, as we have
said, based on all of the facts known to them at the time, the police could
reasonably believe the Camaro was connected to and would yield evidence of
the crime.
Because we conclude there was probable cause to search the Camaro,
we need not address the People’s additional arguments that Tousant
abandoned the car and therefore lacked standing to challenge the search. We
also do not address their claim that the smell of unburnt marijuana justified
the search of the car.
11
D. There Was Probable Cause to Seize Tousant’s Cellphone.
For similar reasons, the police properly seized Tousant’s cellphone3—
found in plain view, in “the clearly visible portion of the center console near
the left-hand side of the center console cup holder, close to the right edge of
the driver’s seat.” We are unconvinced by Tousant’s arguments that seizure
of the cellphone was unjustified because cellphones are not inherently illegal
items, the cellphone lacked any nexus with suspected criminal activity, and
law enforcement unduly delayed obtaining a search warrant to search the
contents of the cellphone after it was seized.
Like searches, seizures must be reasonable on the facts presented.
(People v. Lenart (2004) 32 Cal.4th 1107, 1119.) Officers may seize evidence
in plain view “from a position where the officer has a right to be,” including a
vehicle he or she is entitled to search. (People v. Webster (1991)
54 Cal.3d 411, 431.) “In the cell phone context . . . it is reasonable to expect
that incriminating information will be found on a phone regardless of when
the crime occurred.” (Riley v. California (2014) 573 U.S. 373, 388, 399 (Riley)
[defense concession that officers can seize and secure cell phones discovered
during proper searches of a defendant’s person incident to arrest is
“sensible”].) Here, police reasonably believed the Camaro and its driver were
connected to the shooting. Based on the totality of the circumstances we have
3 Tousant also challenges the search and seizure of additional items
from his car, including a rental agreement, cigarette butt, and an interim
driver’s license, but he fails to advance any arguments specifically addressing
those items in his opening brief. He thus fails to meet his burden on appeal
demonstrating error. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 549
[“ ‘ “We must indulge in every presumption to uphold a judgment, and it is
defendant's burden on appeal to affirmatively demonstrate error—it will not
be presumed” ’ ”].)
12
already discussed, there was probable cause to believe the cellphone would
contain evidence related to the shooting, and therefore it was properly seized.
Nor was law enforcement’s 15-day retention of Tousant’s cellphone
before securing a warrant to search its contents unreasonable, an argument
Tousant raises for the first time on appeal. Seizures, which affect a person’s
possessory interest in an item, are less intrusive than searches, which
implicate a person’s privacy interests. (Segura v. U.S. (1984) 468 U.S. 796,
806, 812; People v. Tran (2019) 42 Cal.App.5th 1, 8.) The interest in
protecting “incriminating evidence from removal or destruction can
supersede, at least for a limited period, a person’s possessory interest in
property, provided that there is probable cause to believe that that property
is associated with criminal activity.” (Segura, at p. 808.)
The record does not support Tousant’s claim he had an “undiminished
possessory interest” in his cellphone that was affected by the delay in
securing a search warrant. Tousant does not claim he requested the return of
the cellphone. Nor does he cite any evidence below that he ever sought
return of the cellphone. (U.S. v. Johns (1985) 469 U.S. 478, 487 [delay in
obtaining a warrant did not adversely affect possessory interests where
defendant did not seek return of property and failed to allege or prove the
delay “adversely affected legitimate interests protected by the Fourth
Amendment”].)4
4 At trial, Tousant testified that he did not retrieve the car because he
“didn’t want to deal with it.” The People also offered evidence at trial
indicating Tousant began storing data on a different phone on August 20,
2015, the date policed seized the cellphone from the Camaro. The People
argue this evidence shows Tousant had no intention of retrieving the seized
cellphone. We need not rely on this evidence, which was elicited well after
the magistrate and trial court had denied the motions to suppress.
13
The police, on the other hand, had a substantial interest in extracting
data from the cellphone. Based on the evidence gathered at the scene of the
Oakland shooting and subsequent investigations, which we discuss further
below, Officer Arreola believed Tousant was involved, and the cellphone
would contain evidence relevant to that event. Given the lack of any showing
by Tousant that his possessory interests were affected by the two-week delay
in searching the contents of cellphone retrieved from the Camaro, Tousant
does not demonstrate the length of the seizure was unreasonable.
E. The Search Warrant for Tousant’s Cellphone Was Valid.
Tousant contends Arreola’s limited September 2 warrantless search of
Tousant’s cellphone to identify its corresponding telephone number was
illegal. According to Tousant, without this information confirming his
ownership of the cellphone, there was no probable cause to believe the phone
contained any evidence of the Oakland shooting. Thus, he argues there was
no basis to issue a warrant to search the phone, and in any event, the
resulting warrant was overbroad.5
When determining whether probable cause existed for the issuance of a
search warrant, we assess the totality of the circumstances under which the
warrant issued. (Illinois v. Gates (1983) 462 U.S. 213, 230-235; § 1525 [“A
search warrant cannot be issued but upon probable cause, supported by
affidavit”].) Doubts as to whether an affidavit supporting a search warrant
establishes probable cause are resolved in favor of the validity of the warrant.
(People v. Frank (1985) 38 Cal.3d 711, 722.)
5 We do not address Tousant’s challenge to the scope of information
sought by the warrant to search Tousant’s cellphone, an argument he failed
to raise in the trial court and thus forfeits on appeal. (See People v. Tully
(2012) 54 Cal. 4th 952, 979-980 [specific claim not raised in defendant’s
suppression motion in the trial court is forfeited on appeal].)
14
As a threshold matter, the People concede, and we agree, that Arreola’s
initial pre-warrant search of Tousant’s cellphone on September 2, 2015, was
illegal. The U.S. Supreme Court in Riley, supra, 573 U.S. 373, concluded
officers may not engage in a warrantless search of “those areas of the phone
where an officer reasonably believes that information relevant to . . . the
arrestee’s identity” may be discovered. (Id. at p. 399 [addressing limited
search of a cellphone seized incident to arrest].) Instead, absent an
emergency, a warrant is required to search the digital contents of a cellphone.
(Id. at p. 401.) By turning the cellphone on, using guesswork to determine its
password, unlocking it, looking through the settings folder and viewing a
photo, Arreola violated Tousant’s Fourth Amendment rights. Thus, the
information she gleaned from this limited search of Tousant’s cellphone—the
telephone number and photograph of his driver’s license—must be excised
from the affidavit supporting the search warrant to view the digital contents
of the phone. (People v. Weiss (1999) 20 Cal.4th 1073, 1081 (Weiss).)
Where, as here, “a criminal investigation involved some illegal conduct,
courts will admit evidence derived from an ‘independent source’ ”—evidence
“ ‘that has been discovered by means wholly independent of any
constitutional violation.’ ” (Weiss, supra, 20 Cal.4th at p. 1077.) For search
warrant affidavits containing “both information obtained by unlawful conduct
as well as untainted information, a two prong-test applies to justify
application of the independent source doctrine.” (People v. Robinson (2012)
208 Cal.App.4th 232, 241.) “First, the affidavit, excised of any illegally-
obtained information, must be sufficient to establish probable cause.” (Ibid.)
Second, the evidence must support a finding that ‘the police subjectively
would have sought the warrant even without the illegal conduct.’ ” (Ibid.)
“[W]e determine de novo whether the search warrant affidavit is sufficient to
15
establish probable cause . . . absent the information obtained by the illegal
[conduct].” (Ibid.)
Even without the tainted information derived from the illegal search—
the cellphone number and driver’s license information confirming Tousant’s
connection with the cellphone—Arreola’s affidavit established probable cause
to search the cellphone. (See Weiss, supra, 20 Cal.4th at p. 1081.) Most of
the affidavit detailed Arreola’s investigation of Tousant before the
September 2 warrantless search of his phone. Arreola tied Tousant to the
Oakland shooting because his rental car, the Camaro, was found at the scene
of the shooting with his rental agreement inside it. The affidavit pointed out
that the cellphone was recovered from the Camaro. Arreola chronicled
Tousant’s history of law enforcement contacts, including prior felony
convictions for robbery and failure to register as a sex offender, his son’s
death from a shooting, his presence at the hospital holding a loaded black
shotgun in apparent violation of laws prohibiting felons from possessing
firearms and ammunition, and his involvement in a shooting in July 2015 in
which he was shot in the leg. She described Tousant’s arrest on August 31,
2015, after police found him sitting in the Chevrolet Impala, the vehicle used
by the suspect in the Berkeley shooting. Items found in the Impala during
that arrest further linked Tousant with the two shootings. These included a
7.62 by 39-caliber bullet casing of the same type and size as those found at
the Berkeley and Oakland shootings and a loaded 9-millimeter Ruger in the
purse of a female passenger (Street) in the vehicle. She pointed out that a 9-
millimeter handgun was also used at the Oakland shooting. Arreola reported
the passenger denied knowledge of the 9-millimeter gun and stated that
Tousant had handed the gun to her to place inside her purse and, after they
16
were arrested, had urged her to “take it” saying it would only be a
misdemeanor, and promised to bail her out.
Tousant insists the information Arreola obtained from the illegal
September 2 search of his phone was essential to the issuance of the warrant.
Pointing to the fact the cellphone was found next to an interim driver’s
license belonging to another individual, Tousant claims there was no
evidence the phone was his. Tousant ignores the facts that the cellphone was
recovered from the Camaro on the driver’s side of the car and that a rental
agreement in his name was also found. These circumstances made it
reasonable to infer the cellphone belonged to Tousant. Probable cause
requires only a fair probability, not a certainty. (Farley, supra, 46 Cal.4th at
p. 1098.)
The location of Tousant’s arrest after he was found driving the same
Chevrolet Impala as that involved in the Berkeley shooting, the presence of
his rental Camaro unlocked and with keys in the ignition at the scene of the
Oakland shooting, the ballistics evidence potentially connecting him with
both shootings, and his history of involvement with guns and shootings
established probable cause that Tousant was involved in both shootings. And
there was a nexus between the shootings and the cellphone. Arreola
explained that based on her experience working in a felony assault unit,
perpetrators often use their phones to communicate plans for assault, to
retain photos of themselves with weapons, and to brag about completed
assaults. (See Riley, supra, 573 U.S. at p. 399; see, e.g., People v. Price (2017)
8 Cal.App.5th 409, 427, 431 [murder case in which text messages strongly
implicated defendant as shooter and evinced intent to kill]; In re K.B. (2015)
238 Cal.App.4th 989, 994 [incriminating photos extracted from cellphone
showed juveniles posing with handguns]; People v. Hollinquest (2010)
17
190 Cal.App.4th 1534, 1544 [incriminating cellphone evidence linked co-
defendants to each other and to victim by multiple calls on day of murder and
placed them in close proximity to each other and to scene of murder].)
Testimony further established Arreola would have sought the warrant
even without the tainted cellphone information. (See Weiss, supra,
20 Cal.4th at p. 1079.) Before she searched the cellphone, she confirmed
Tousant’s identity and listed him as a suspect for the Oakland shooting based
on the information set forth above. The trial court found the officer’s
September 2 cellphone search did not negate her investigation efforts. (See
Murray v. U.S. (1988) 487 U.S. 533, 542 [warrant fails independent source
rule if the illegally obtained information prompted the agent’s decision to
seek the warrant or affected the magistrate’s decision to issue the warrant].)
The facts amply support the trial court’s finding that the police would have
sought and obtained the warrant even without obtaining Tousant’s telephone
number or driver’s license information.6 (See id. at pp. 543-544 [remand
required where trial court makes no finding about whether illegal conduct
was irrelevant to later securing warrant].)
Both prongs of the independent source doctrine were satisfied here, and
there was no error in the trial court’s ruling on Tousant’s suppression
motion.7
6 Given this conclusion, it is unnecessary to address Tousant’s
additional argument that the information downloaded from the cellphone
would not have been inevitably discovered. Contrary to Tousant’s assertions,
the trial court expressly stated it was not relying on the inevitable discovery
rule to deny Tousant’s suppression motion.
7 In light of our conclusion, we do not address Tousant’s prejudicial
error argument.
18
II.
Tousant Did Not Require Miranda Warnings Because
He Was Not Interrogated.
Tousant contends the trial court erroneously admitted self-
incriminating statements made to Sergeant Sanchez during a custodial
interrogation about his son’s murder investigation, and without receiving
advisements required under Miranda v. Arizona 384 U.S. 436 (Miranda).
There was no error.
A. The Relevant Facts and Proceedings Below
Tousant was arrested after the August 31, 2015 traffic stop, and
officers transported him to the Berkeley Police Department for questioning.
Berkeley officers advised him of his Miranda rights, Tousant stated he
understood, and he continued to participate in a conversation with them. On
September 1, 2015, Sanchez learned Tousant was in custody for firearms
charges arising from the traffic stop. He had no knowledge that Berkeley
police were investigating Tousant for the Berkeley shooting. Instead,
Sanchez was interested in information Tousant had about his son’s murder.
On that basis, he obtained a removal order for Tousant, transported him to
Oakland, and interviewed him in an interrogation room. Sanchez did not
read Tousant his Miranda rights, did not ask Tousant about the Berkeley
shooting and did not ask him about any other shootings he might have
committed in the past.
During a recorded conversation, Tousant described his son’s
involvement in a Berkeley gang called “Waterfront.” Waterfront was feuding
with another Berkeley gang, Five Finga Mafia, partially because Tousant Jr.
may have stolen a neck chain from a Five Finga Mafia member. In a social
media post, the Five Finga Mafia gave Waterfront an ultimatum to return
the chain or face a violent feud. The chain was not returned. Tousant
19
believed his son was invited to a dice game under false pretenses—Nigel
Blackwell, a Five Finga gang member who went by the alias “Five Finga
NOC,” waited in a nearby apartment for Tousant’s son to leave the game
before shooting him.
Before trial, Tousant moved to exclude his statements to Sanchez,
arguing Sanchez failed to Mirandize him. The trial court heard testimony
from Sanchez, viewed Sanchez’s videotaped interview of Tousant and ruled
Tousant’s statements admissible.8 According to the trial court, Tousant was
in custody but appeared willing to talk to Sanchez about people he knew or
events that occurred in Tousant Jr.’s murder case. The trial court further
found Sanchez lacked any knowledge about the Berkeley shooting, lacked
specifics about the firearm possession charges and limited his questioning to
the circumstances of Tousant Jr.’s death. After noting that an
“[i]nterrogation is a situation where the police are engaging in conduct that
might reasonably be interpreted as being likely to elicit an incriminating
response from somebody”, the trial court observed that in the circumstances
here “it would be hard” for Sanchez to elicit information about a case “he
knew nothing about.”
B. The Relevant Law
The Fifth Amendment privilege against self-incrimination requires
officers to inform criminal suspects, before questioning, of their right to
remain silent, and that statements made may be used against them in court.
(Miranda, supra, 384 U.S. at p. 479.) That right attaches during a custodial
“interrogation.” (Ibid.) An interrogation refers to express questioning or its
functional equivalent, including “any words or actions on the part of the
8 There is no video recording or transcript of the interview in the
record.
20
police” that the “police should know are reasonably likely to elicit an
incriminating response from the suspect.” (Rhode Island v. Innis (1980)
446 U.S. 291, 300-302, fn. omitted (Innis).) “The latter portion of this
definition focuses primarily upon the perceptions of the suspect, rather than
the intent of the police. This focus reflects the fact that the Miranda
safeguards were designed to vest a suspect in custody with an added measure
of protection against coercive police practices, without regard to objective
proof of the underlying intent of the police. A practice that the police should
know is reasonably likely to evoke an incriminating response from a suspect
thus amounts to interrogation. But, since the police surely cannot be held
accountable for the unforeseeable results of their words or actions, the
definition of interrogation can extend only to words or actions on the part of
police officers that they should have known were reasonably likely to elicit an
incriminating response.” (Innis, at pp. 301-302.)
Whether an interrogation occurred is determined by “an objective test
according to which we ‘analyze the total situation which envelops the
questioning by considering such factors as the length of the interrogation, the
place and time of the interrogation, the nature of the questions, the conduct
of the police and all other relevant circumstances.’ ” (People v. Morse (1969)
70 Cal.2d 711, 722.) “Not every question directed by an officer to a person in
custody amounts to an ‘interrogation’ requiring Miranda warnings. The
standard is whether ‘under all the circumstances involved in a given case, the
questions are “reasonably likely to elicit an incriminating response from the
suspect.” ’ [Citation.] This is an objective standard. ‘The subjective intent of
the [officer] is relevant but not conclusive. [Citation.] The relationship of the
question asked to the crime suspected is highly relevant. [Citation.]’ ”
(People v. Wader (1993) 5 Cal.4th 610, 637.) “We review the trial court’s
21
finding regarding whether interrogation occurred for substantial evidence or
clear error.” (People v. Clark (1993) 5 Cal.4th 950, 985, overruled in part on
other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
C. Analysis
There is no dispute that Tousant was in custody when he made his
statements to Sanchez. Rather, the issue is whether Tousant’s statements
were the product of an interrogation. (See Innis, supra, 446 U.S. at p. 300.)
For the reasons set forth below, we conclude that substantial evidence
supports the trial court’s finding that there was no interrogation and thus no
violation of Miranda.
1. Incriminating Statements About the Berkeley Shooting
Tousant was in custody for the August 31, 2015 firearms offense, not
the Berkeley shooting, contrary to Tousant’s assertions. In fact, he was not
arrested for the Berkeley shooting until October 2015. Sanchez was not a
Berkeley police officer; he was an Oakland officer. He did not know about the
Berkeley shooting, and there was no reason for him to have believed the
interview about Tousant Jr.’s murder would elicit incriminating information
about the firearm possession charges for which he was in the custody of the
Berkeley police. (See People v. Dement (2011) 53 Cal.4th 1, 26-27 [questions
about unrelated offenses permissible because they could not be reasonably
construed as calling for an incriminating response].)
Moreover, the trial court found Sanchez’s questions were designed to
elicit information about Tousant’s son’s murder investigation, not about any
offense of which Tousant was in custody or even suspected. (See People v.
Elizalde (2015) 61 Cal.4th 523, 537 [although not a necessary showing,
“design or intent of the police is relevant to the extent it demonstrates what
the police should have known about the nature of the questioning”]; People v.
22
Wader, supra, 5 Cal.4th at p. 637 [when assessing whether there was an
interrogation for the purposes of Miranda, the “ ‘relationship of the question
asked to the crime suspected is highly relevant’ ”].) The trial court further
found Tousant was willing to offer Sanchez information he collected about his
son’s murder.
Relying on People v. Anthony (2019) 32 Cal.App.5th 1102 (Anthony),
Tousant argues Sanchez should have known questioning Tousant about his
son’s murder would elicit incriminating information about offenses for which
Tousant was being investigated. But the circumstances here are different
from those in Anthony.
In that case, Anthony saw his fellow gang member shot and killed in
Oakland. (Anthony, supra, 32 Cal.App.5th at p. 1115.) Even though he was
close by, Anthony was not shot. (Ibid.) One month later, Berkeley police
arrested Anthony, who was a suspect in the subsequent retaliatory killing of
the brother of a rival Berkeley gang member. (Id. at pp. 1108-1109, 1112.)
After his arrest, Anthony was transferred to Oakland police for questioning.
(Id. at p. 1117.) During questioning, the Oakland police acknowledged their
awareness that Anthony was a suspect in a Berkeley murder that might be
gang related and possibly related to the earlier Oakland shooting. (Id. at
pp. 1114-1116, 1124.) The Oakland officers also had reason to know about
the relationship between the two cases based on Anthony’s previous
statements to them about his gang’s feud with the Berkeley gang. (Id. at
p. 1124.) Despite this, the officers pursued lines of questioning that called for
responses bearing directly on the Anthony’s motive and intent in the crime of
arrest—the Berkeley shooting—and this court determined they should have
provided Miranda warnings before questioning him further. (Id. at pp. 1124.)
23
Here, by contrast, Sanchez had no knowledge of Tousant’s possible
involvement in the Berkeley shooting. Nor did he have reason to know. (See
Anthony, supra, 32 Cal.App.5th at p. 1124.) No one had informed Sanchez
that Tousant was a suspect in that shooting. We are not persuaded by
Tousant’s claim Sanchez was required to ascertain all the circumstances of
his August 31 arrest by Berkeley police, such as confirming Tousant was
arrested in the car used by the suspects in the Berkeley shooting. Berkeley
police informed Sanchez that Tousant was in custody on firearm possession
charges, not charges involving a shooting. Sanchez did not ask Tousant any
questions about the firearms charges, and his questions about Tousant’s son’s
murder were not likely elicit incriminating responses bearing on those
charges. Tousant cites no authority for the proposition that Miranda
requires an officer who questions a witness about one crime must determine
whether a defendant is suspected by another police department of a crime for
which he has not been charged.
Nor are we persuaded by Tousant’s contention that Sanchez’s past
statements to Tousant—discouraging him from retaliating against anyone for
his son’s murder—demonstrate that Sanchez knew or should have known his
questions were reasonably likely to elicit an incriminating response from the
Tousant. Sanchez’s concern that Tousant might attempt to retaliate against
the rival gang in the future did not require him to avoid questioning Tousant
about his son’s murder—a crime of which he was in no way suspected—
because his answers might potentially be incriminating in an entirely
different and, as far as he knew, merely potential future crime. (See Innis,
supra, 446 U.S. at pp. 301-302.)
Finally, while Tousant argues that it “strains credulity” that Sanchez
did not know Tousant was a suspect in the Berkeley shooting, the trial court
24
heard Sanchez’s testimony and found otherwise, and we defer to its
credibility determinations and factual findings. (See People v. Vance (2010)
188 Cal.App.4th 1182, 1211.)
2. Incriminating Statements About the Oakland Shooting
For somewhat different reasons, we reject Tousant’s additional
argument, first raised on appeal, that Sanchez should have known his
questioning would elicit an incriminating response regarding the Oakland
shooting.9 Sanchez was not questioned at the hearing on the Miranda issue
about whether he was aware of the Oakland shooting and Tousant’s possible
involvement. On the record before us, he has failed to show Sanchez should
have known his questions would likely elicit incriminating testimony about
the Oakland shooting.
First, Tousant relies on a police bulletin prepared and distributed by
Officer Arreola on August 27, 2015, to Oakland Police Department sergeants
and officers and seeking assistance to identify two suspects in the Oakland
shooting. But the bulletin itself is not in the record. Instead, any
information about the bulletin is contained in secondary sources—Officer
Arreola’s preliminary hearing testimony and the search warrant she also
prepared to search the cellphone found in the Camaro.
Although the search warrant briefly mentions the bulletin, it provides
little information about it. Arreola testified that the bulletin stated that a
car was found with indicia indicating it was Tousant’s car but there was no
probable cause to detain Tousant. The bulletin asked that she be notified if
another officer contacted Tousant for some other reason.
9Tousant did not make that argument in the trial court in his in limine
motion seeking to exclude his statements to Sanchez. Tousant forfeited this
argument by failing to raise it below, but the People do not argue forfeiture
and so we shall address it.
25
Second, Tousant relies on the search warrant because it suggests a
connection between Tousant and the Oakland shooting, and it indicates that
Arreola, and therefore the entire Oakland Police Department, obtained
additional significant information on August 31, 2015, the day before
Sanchez interviewed Tousant. Specifically, Arreola learned that an Oakland
officer had detained Tousant and two passengers that day because he was
sitting in a car sought pursuant to a felony warrant relating to the Berkeley
shooting investigation. As we previously described, Berkeley police searched
the vehicle, yielding a handgun and a bullet casing in the rail of the driver’s
seat. The bullet casing was the same size as casings found at the scene of the
shooting Berkeley was investigating. In the search warrant, Arreola noted
that bullet casings of the same size had been found at the scene of the
Oakland shooting.
Sanchez was not questioned at the suppression hearing about the
bulletin, the search warrant or anything pertaining to the Oakland shooting
or investigation. Nor was he questioned about anything he may have learned
from Arreola beyond what was in the warrant. He testified that he may have
talked to a Berkeley officer on September 1, before picking Tousant up from
the jail. He learned that Tousant was in custody for a firearms offense but
did not ask for details about that charge. He learned Tousant was not alone
when he was stopped, but this was the only information he received.
On this record, Tousant fails to demonstrate that Sanchez knew or
should have known at the time he questioned Tousant about his son’s
murder, that such questioning of Tousant would likely elicit incriminating
26
statements.10 Thus, Tousant’s statements were not illegally obtained, and
the trial court did not err by admitting them.11
III.
The Trial Court Properly Admitted Evidence of Tousant’s Prior Acts.
Tousant contends the trial court abused its discretion by admitting
evidence of certain prior uncharged crimes and bad acts under Evidence Code
section 1101. We find no abuse of discretion here.
A. The Relevant Proceedings Below
The prosecutor moved to admit the evidence that in April 2015,
Tousant stood outside the hospital where Tousant Jr. was brought for
treatment, and while holding a firearm and ammunition, stated, “Fuck the
police” and evidence that Tousant participated in the Oakland shooting. The
trial court ruled evidence of both events was admissible under Evidence Code
section 1101, subdivision (b). The trial court found the hospital incident
tended to prove Tousant’s motive for committing the Berkeley shooting—to
exact revenge for his son’s murder. For the Oakland shooting, the trial court
explained it occurred at the supposed address of the person Tousant
suspected of killing his son. This fact was probative of Tousant’s intent and
10 Tousant cites People v. Roberts (2017) 13 Cal.App.5th 565 for the
proposition that an interrogation occurs if a defendant is questioned in a way
that would incriminate him in a potential future case for a crime defendant
has not committed or is not known to have committed at the time. But as
Tousant acknowledges, Roberts involved questions about gang affiliation, and
the court reasoned that “an admission of gang membership always carries
with it the incriminatory prospect of future enhanced punishment.” (Id. at
p. 576.) Unlike admission of gang membership, statements about a crime
committed by a third party against a family member or friend of the
defendant do not “always carry with [them any] incriminatory prospect.”
11 In light of this conclusion, we do not address Tousant’s prejudicial
error argument.
27
common plan to “find and address or deal with the people he thinks or
thought might have been involved in his son’s shooting.”
The trial court also found admitting these acts into evidence would not
result in an undue consumption of time and would not confuse the jury. After
the close of evidence, the trial court instructed the jury that they “may, but
are not required to, consider that evidence [of uncharged conduct] for the
limited purpose of deciding whether the defendant had a motive to commit
the crimes or offenses alleged in this case, or that the defendant had a plan to
commit the offenses or crimes alleged in this case.” It admonished the jury
that the conduct could not be considered for propensity and was not sufficient
on its own to support a conviction.
B. The Relevant Law
While evidence of prior misconduct is inadmissible to prove propensity
to commit a crime on a particular occasion, uncharged crimes or bad acts are
admissible to prove other facts, such as “motive, opportunity, intent,
preparation, [or] plan.” (Evid. Code, §1101, subds. (a), (b).) Admission
depends on “ ‘(1) the materiality of the facts sought to be proved, (2) the
tendency of the uncharged crimes to prove those facts, and (3) the existence of
any rule or policy requiring exclusion of the evidence.’ ” (People v. Kelly
(2007) 42 Cal.4th 763, 783.) A jury may consider evidence of a person’s
conduct admitted under Evidence Code section 1101, subdivision (b) if the
conduct is proven by a preponderance of the evidence. (People v. Leon (2015)
61 Cal.4th 569, 597.) Consistent with Evidence Code section 352, “[t]he
probative value of the uncharged offense evidence must be substantial and
must not be largely outweighed by the probability that its admission would
create a serious danger of undue prejudice, of confusing the issues, or of
28
misleading the jury.” (People v. Kipp (1998) 18 Cal.4th 349, 371.) We review
trial court rulings admitting this evidence for an abuse of discretion. (Ibid.)
C. Analysis
1. Tousant’s Conduct Outside the Hospital
There was no abuse of discretion in admitting Tousant’s statements
and actions outside the hospital, which were highly probative of his motive to
commit the Berkeley shooting. (See People v. Thompson (2016) 1 Cal.5th
1043, 1114 [uncharged conduct may be relevant to establishing motive if
there is a direct relationship between the uncharged conduct and an element
of the charged offense].) While motive is not an element of Tousant’s
offenses, it is “an intermediate fact” probative of his intent. (Ibid.) Tousant’s
possession of a shotgun and his statement, “Fuck the police” while standing
outside the hospital where Tousant Jr. died tended to establish a motive to
retaliate for his son’s death instead of relying on police and prosecutors to
bring the killer to justice. Although Tousant did not know who killed his son
when he engaged in this conduct, the victims of the Berkeley shooting
included a suspected member of the Five Finga Mafia, the group Tousant
later believed was responsible for his son’s murder. That the gun Tousant
held while standing outside the hospital was different from the gun used in
the Berkeley shooting does not render this evidence inadmissible.
“[E]vidence of weapons unconnected to the crime may be relevant for other
purposes” (People v. Merriman (2014) 60 Cal. 4th 1, 81), such as motive,
which “ ‘is not dependent on comparison and weighing of the similar and
dissimilar characteristics of the past and present crimes.’ ” (Thompson,
supra, 1 Cal.5th at p. 1114.)
Furthermore, the court reasonably concluded admitting this evidence
was not unduly prejudicial. (See People v. Kipp, supra, 18 Cal.4th at p. 371.)
To the extent Tousant contends this evidence allowed him to be characterized
29
as a “gun-toting criminal,” it was simply cumulative of other evidence
admitted at trial that Tousant possessed guns (e.g., photo showing Tousant
with two handguns and holding an assault rifle). (See People v. Gunder
(2007) 151 Cal.App.4th 412, 417 [“evidence demonstrat[ing] criminal
propensity is simply a factor to consider in assessing the prejudice from its
admission; it is not a basis for exclusion unless the evidence otherwise lacks
any probative value”].) We also presume the jury, as instructed, only
considered this incident for the limited purpose of establishing Tousant’s
motive to commit his charged offenses, not his propensity to carry firearms.
(See People v. Holt (1997) 15 Cal.4th 619, 662 [“[j]urors are presumed to
understand and follow the court’s instructions”].) Admitting this evidence
was not an abuse of discretion.
2. The Oakland Shooting
Similarly, the court properly found the Oakland shooting evidence
probative of Tousant’s common plan to find and harm people he believed to
have killed his son. “[E]vidence that the defendant has committed uncharged
criminal acts that are similar to the charged offense may be relevant if these
acts demonstrate circumstantially that the defendant committed the charged
offense pursuant to the same design or plan he or she used in committing the
uncharged acts.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt).) To
prove the existence of a common design or plan, there must be a “greater
degree of similarity” between the uncharged act and charged offense. (Id. at
p. 402 [the least degree of similarity is required to establish intent, and the
greatest degree of similarity is required to establish identity].) The “common
features must indicate the existence of a plan rather than a series of similar
spontaneous acts, but the plan thus revealed need not be distinctive or
unusual.” (Id. at p. 383.)
30
The Oakland and Berkeley shootings shared a requisite level of
common features. Both incidents involved shooting at victims whom Tousant
believed to be members of the Five Finga Mafia—Kevin Greene and Nigel
Blackwell. Text messages on Tousant’s cellphone evidenced his belief Nigel
Blackwell lived at 1314 105th Avenue, the address of the Oakland shooting.
Kevin Greene was a victim in the Berkeley shooting, which occurred near
San Pablo Park, an area where the Five Finga Mafia was known to operate.
The shootings occurred only five days apart and were executed by firing
multiple shots at the supposed targets. 7.62 by 39-millimeter ammunition or
casings—like the bullet found in Tousant’s car during the August 31 traffic
stop—were recovered from the scenes of both shootings.
Tousant argues the Oakland shooting was insufficiently similar to the
Berkeley shooting to be admissible. Primarily, he claims the suspects’
descriptions and the car allegedly used in the Oakland shooting—an older
four-door vehicle—do not match him or his car. But greater similarity
between the uncharged conduct and charged offense is required for
demonstrating identity, not the existence of a common plan. (See Ewoldt,
supra, 7 Cal.4th at pp. 402-403.) The manner in which the shootings were
executed, the short timeframe between the two crimes, and the fact that the
intended victims were affiliated with the same gang demonstrate a degree of
similarity sufficient to support an inference that Tousant acted according to a
common plan to retaliate against his son’s alleged killers. (Cf. People v.
Grant (2003) 113 Cal.App.4th 579, 589 [taking similar types of items,
computer equipment, from similar places, empty schools after hours, by
prying open doors or windows was not sufficiently similar to demonstrate
common plan particularly where burglaries occurred three years apart].)
31
We also disagree that the evidence failed to establish Tousant’s
involvement in the Oakland shooting, thus rendering this evidence unduly
prejudicial. Tousant’s Camaro was parked across the street from the
shooting, his text messages and internet searches identified the address of
the shooting—a preponderance of the evidence established that Tousant was
at the scene of and involved in the Oakland shooting. (See People v. Leon,
supra, 61 Cal.4th at p. 597.) The trial court’s instructions to the jury that an
uncharged offense does not sufficiently support a conviction of the charged
offense—here, the Berkeley shooting—on its own mitigated any prejudicial
effect of admitting the Oakland shooting evidence. (See Ewoldt, supra,
7 Cal.4th at p. 405 [noting “jury might have been inclined to punish
defendant for the uncharged offenses, regardless whether it considered him
guilty of the charged offenses”].) The trial court did not abuse its discretion
by admitting evidence of the Oakland shooting.
Finally, we reject Tousant’s additional claim that admission of these
prior acts violated his constitutional rights. The “ ‘ “routine application of
state evidentiary law does not implicate [a] defendant’s constitutional
rights.” ’ ” (People v. Mills (2010) 48 Cal.4th 158, 194.)
IV.
The Trial Court Properly Denied Tousant’s Motion
to Sever His Offenses.
Tousant argues the trial court erroneously denied his request to sever
his Berkeley assault charges from his Oakland firearm possession charges.
He claims his offenses did not meet the statutory criteria for joinder under
section 954, and the trial court abused its discretion by allowing a weak case
to be bolstered by his stronger Oakland firearm possession case. There was
no error or abuse of discretion in the trial court’s ruling.
32
A. The Relevant Law
Two or more different offenses “connected together in their commission”
or “of the same class of crimes or offenses” may be charged and tried together
in one case. (§ 954.) A court may further consolidate to one or more
accusatory pleadings if “filed . . . in the same court.” (Id.) “ ‘Offenses of the
same class are offenses which possess common characteristics or attributes.’ ”
(People v. Landry (2016) 2 Cal.5th 52, 76 [possession of a weapon while in
custody and assault by a life prisoner share common characteristics of
offenses in custodial context and prison-made weapons and served same
purpose of preventing assault by armed prisoners]; cf. People v. Madden
(1988) 206 Cal.App.3d Supp.14, 19 [charges of possession of hypodermic
needle and failure to appear have no common characteristics or attributes].)
Courts may sever properly joined offenses “in the interests of justice
and for good cause shown,” but there is a preference for joinder in the
interests of judicial economy and efficiency. (§ 954; People v. Simon (2016)
1 Cal.5th 98, 122.) If the statutory requirements for joinder are satisfied, a
defendant establishes an abuse of discretion denying severance “only on a
clear showing of prejudice.” (People v. Lucky (1988) 45 Cal.3d 259, 277.)
“Refusal to sever may be an abuse of discretion where: (1) evidence of the
crimes to be jointly tried would not be cross-admissible in separate trials; (2)
certain of the charges are unusually likely to inflame the jury against the
defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case or with
another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on
several charges might well alter the outcome of some or all of the charges;
and (4) any one of the charges carries the death penalty or joinder of them
turns the matter into a capital case.” (People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 282.) The potential prejudice from the joint trial is then
33
balanced against the benefits to the state. (People v. Soper (2009) 45 Cal.4th
759, 775 (Soper).)
B. Analysis
The statutory requirements for joinder were satisfied here. Both of
Tousant’s criminal complaints charged him with felon in possession of a
firearm—counts 8 and 11. (§ 29800, subd. (a)(1).) Those and Tousant’s other
firearms charges—felon carrying a concealed, loaded, unregistered firearm in
a vehicle (§§ 25400, subds. (a)(1), (c)(1), (c)(6)), felon carrying a loaded,
unregistered firearm in a city (§§ 25850, subds. (a), (c)(1), (c)(6))—and the
Berkeley assault with firearm charges are in the same class because they all
involve the illegal use of firearms.12 To the extent Tousant argues the
statutes for assault and firearm charges are in different parts of the Penal
Code and thus not in the “same class,” we disagree. The statute does not
mandate any such requirement. (See People v. Landry, supra, 2 Cal.5th at
p. 76.)
Nor did the trial court abuse its discretion by rejecting Tousant’s
motion to sever the joined offenses. Tousant concedes most evidence from the
Oakland traffic stop would be cross-admissible in a separate trial for the
Berkeley shooting. (See People v. Carter (2005) 36 Cal.4th 1114, 1154 [cross-
admissibility alone sufficiently dispels any prejudice].) First, Tousant was
12 Various cases explain the legislative purpose behind these firearm
statutes. (See, e.g., People v. Bedolla (2018) 28 Cal.App.5th 535, 552 [purpose
of § 25850, subd. (a) to address the hazard presented by carrying loaded
firearms in public]; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1409
[legislative intent of § 12021, now § 29800, to “ ‘ “limit as far as possible the
use of instruments commonly associated with criminal activity” ’ ” and
presumption “ ‘the danger is greater when the person possessing the
concealable firearm has previously been convicted of felony’ ”]; People v.
Martinez (1987) 194 Cal.App.3d 15, 20 [noting Legislature instituted specific
punishment for assaults committed with firearms in § 245].)
34
arrested for his August 31 firearm possession offenses in the same car used
during the Berkeley shooting, the white Chevrolet Impala. Indeed, police
initiated the stop because they sought the Impala in relation to a serious
crime. Second, a search of the Impala during the traffic stop yielded a 7.62
by 39-caliber bullet, the type of bullet used in the Berkeley shooting. Tousant
nonetheless argues the 9-millimeter handgun found in his car during the
Oakland traffic stop would not be independently admissible in a separate
trial for the Berkeley shooting. Even assuming we agree, that fact does not
conclusively establish prejudice. (Soper, supra, 45 Cal.4th at p. 775 [in the
absence of cross admissibility, courts proceed to consider the other factors for
assessing “spill-over” effect].)
The additional section 954 factors support the trial court’s order.
Tousant does not contend the charges are likely to unusually inflame the jury
or that any of the charges are capital offenses. (See People v. Gonzales and
Soliz, supra, 52 Cal.4th at p. 282.) Instead, he claims joinder impermissibly
bolstered a weak case—the Berkeley shooting—with a strong one—the
Oakland firearm possession. Although the evidence supporting Tousant’s
Berkeley assault offense is circumstantial, the evidence for both charges is
strong. Tousant’s text messages, cellphone tower records establishing
Tousant’s location during the shooting, and his possession of the same car
and bullets used in the Berkeley shooting tended to prove he committed the
Berkeley assault. (See Soper, supra, 45 Cal.4th at p. 781 [“A mere imbalance
in the evidence, however, will not indicate a risk of prejudicial ‘spillover
effect’ ”].) On balance, Tousant cannot demonstrate any prejudice
outweighed the benefits of joinder. (See id. at p. 782 [severance of joined
charges denies state benefits of efficiency and conservation of resources].)
35
We reject Tousant’s further claim that joining his offenses in a single
trial was so grossly unfair as to violate his due process rights. While we “still
must determine whether, in the end, the joinder of counts . . . for trial
resulted in gross unfairness depriving the defendant of due process of law,”
nothing in the record supports his assertion. (People v. Rogers (2006)
39 Cal.4th 826, 851.) In addition to rehashing his arguments regarding
prejudice that we have already rejected, Tousant claims joinder allowed the
prosecutor to impermissibly argue the handgun obtained from the Oakland
traffic stop was used in the Berkeley shooting. But the prosecutor expressly
informed the jury that that gun was not used in the Berkeley shooting.
Tousant further complains the jury was not instructed that evidence for one
charge may not be considered when determining his guilt for another charge.
However, there is no requirement that the trial court provide such
instruction, and the trial court did instruct the jury with CALCRIM
No. 3515, “Multiple Counts: Separate Offenses (Pen. Code, § 954),” stating
“Each of the counts charged in this case is a separate crime. You must
consider each count separately and return a separate verdict for each one.”
(See CALCRIM No. 3515; People v. Geier (2007) 41 Cal.4th 555, 578-579.)
Having concluded Tousant did not suffer any prejudice from his joint trial, we
may also “reject his contention that the joint trial violated his due process
rights.” (People v. Sapp (2003) 31 Cal.4th 240, 259–260.)
V.
Substantial Evidence Supports Tousant’s Assault Convictions.
Tousant argues there was insufficient evidence to support his
conviction of three counts of assault with firearm (§ 245, subd. (a)(2)
(counts 2-4)). Tousant concedes bullets were fired at 2806 Mabel Street. But
he claims there was insufficient evidence that David Conerly, Kevin Greene,
36
and Jocko Milan were standing close enough to the house, and thus the
bullets, to establish that they were victims of the assault. We are
unpersuaded.
A. The Relevant Law
Challenges to the sufficiency of the evidence supporting a conviction
requires reviewing the entire record in the light most favorable to the
judgment to assess whether it contains substantial evidence—“ ‘evidence that
is reasonable, credible and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Golde
(2008) 163 Cal.App.4th 101, 108.) “Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn from that
evidence.” (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) When
reviewing the sufficiency of the evidence, we do not resolve any credibility
issues or evidentiary conflicts. (People v. Zamudio (2008) 43 Cal.4th 327,
357.) Instead, we presume “in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.” (People v. Kraft
(2000) 23 Cal.4th 978, 1053.)
Section 245, subdivision (a)(2) provides: “Any person who commits an
assault upon the person of another with a firearm shall be punished by
imprisonment . . . .” Assault “requires only a general criminal intent and not
a specific intent to cause injury.” (People v. Williams (2001) 26 Cal.4th 779,
782.) The defendant must have “(1) willfully committed an act which by its
nature would probably and directly result in the application of physical force
against another and (2) was aware of facts that would lead a reasonable
person to realize this direct and probable consequence of his or her act.”
(People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1186.) A defendant may
be convicted of multiple counts of assault when shooting into a group of
37
people. (See, e.g., People v. Riva (2003) 112 Cal.App.4th 981, 999 [“when the
defendant shoots into a group of persons primarily targeting only one of
them, the defendant can be convicted of assault with a deadly weapon as to
the nontargeted members of the group”].)
B. Analysis
There was substantial evidence the shots were fired into the group
consisting of Conerly, Greene, and Milan,13 thus supporting a finding all
three were victims of assault. The shots fired from the Impala focused on the
area of 2806 Mabel Street—a bullet shattered one of the windows, and the
driveway and front stairs of the house were riddled with bullet holes.
Accounts from several witnesses established Conerly, Greene, and Milan
were just outside 2806 Mabel Street before the shooting occurred. Mario
Thomas, a witness, told police that he was hanging out at that house with
Milan, Conerly, and Greene shortly before the shooting. He crossed the
street to his car and, while there, saw the Impala stop “near” where Conerly,
Greene, and Milan were still hanging out. He then heard 10 to 12 shots fired,
causing him to fall to the ground under his car. Based on the evidence that
the Impala pulled up near where Conerly, Greene, and Milan remained
shortly after Thomas crossed the street, and the shots were fired from the
Impala towards the house where the three were hanging out, the jury could
reasonably infer Greene, Conerly, and Milan were in an area likely to be hit
by a bullet.
Tousant’s claim that a pre-trial statement by Greene noting that he
was with his friend at San Pablo Park before the shooting and implying he
13 Rashad Jacob, who was also part of this group, was shot, and
Tousant does not contest the sufficiency of the evidence supporting his
conviction of assault against that victim.
38
was not within the line of fire, does not change this result. (See People v.
Zamudio, supra, 43 Cal. 4th at p. 357 [“ ‘Conflicts and even testimony [that]
is subject to justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the . . . jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination
depends’ ”].) Tousant’s additional argument that Greene, Conerly, and Milan
were only “near” the Impala and thus not sufficiently close to the line of fire
is no more successful. The shots were fired over a large area where the three
men congregated—officers collected bullet shells from both 2806 and 2810
Mabel Street, the neighboring house. And although specific intent to target a
person is not required to support a conviction for assault, 10 to 15 shots were
fired directly at one of the men who tried to run down the street and hid
behind a bystander’s car. (See People v. Aznavoleh, supra, 210 Cal.App.4th at
pp. 1186-1187; cf. People v. Medina (2019) 33 Cal.App.5th 146, 153 [for
attempted murder conviction, substantial evidence victims were in the line of
fire where defendant pointed and fired gun at one victim, and other victims
were 5 to 20 feet away from where defendant was shooting].) The evidence
supports Tousant’s assault convictions.
VI.
The Trial Court Properly Responded to a Jury Question.
Tousant argues the trial court failed to adequately respond to a jury
question seeking clarification about the date of the conduct supporting his
August 15 firearm possession charge—the same day as the Berkeley
shooting. This claim fails.
The trial court instructed the jury on the elements for unlawful
possession of a firearm in violation of section 29800, subdivision (a)(1). For
count 8, the verdict form required the jury to determine whether Tousant
39
unlawfully possessed a firearm “on or about August 15, 2015.” During
deliberations, the jury asked the court: “With regards to Count #8
[possession of a firearm], what does the phrase ‘on or about August 15’ mean?
Does this mean before/after the 15th? Does it mean April? How flexible is
this phrase?” After conferring with counsel, the court responded, “With
respect to count 8, the phrase ‘on or about August 15’ concerns evidence that
was presented relative to conduct alleged to have occurred on that [sic]. [¶] If
this [does] not adequately answer your question, please let me know.” Jurors
remained confused and again asked for clarification. The court and counsel
conferred again, and the court responded, “In this particular case . . . [i]t’s
August 15.”
Rather than identifying an error in this response, Tousant argues the
trial court did not adequately clarify that count 8 related to his conduct on
August 15, 2015. This is unconvincing. Section 1138 requires trial courts “to
provide the jury with information the jury desire[s] on points of law” during
deliberations. (People v. Smithey (1999) 20 Cal.4th 936, 985 (Smithey);
§ 1138.) “Where the original instructions themselves are full and complete,
the court has discretion under section 1138 to determine what additional
explanations are sufficient to satisfy the jury’s request for information.”
(People v. Beardslee (1991) 53 Cal.3d 68, 97.) The court must “rectify any
confusion expressed by the jury regarding instructions, but has discretion to
determine what additional explanations are sufficient to satisfy the jury’s
request for information.” (Smithey, at p. 1009.)
Initially, Tousant forfeited this challenge because the court responded
after consulting with Tousant’s trial counsel. (People v. Ross (2007)
155 Cal.App.4th 1033, 1048 [party forfeits objection to “court’s response to a
jury inquiry through counsel’s consent, or invitation or tacit approval of, that
40
response”].) Even assuming Tousant preserved the issue for our review, the
court’s response was not an abuse of discretion. (See People v. Lua (2017)
10 Cal.App.5th 1004, 1016 [standard of review for claimed errors under
section 1138].) Count 8, Tousant’s firearm possession charge related to his
conduct on August 15, 2015, the day of the Berkeley shooting. (§ 29800,
subd. (a)(1) (count 8)). Upon request, the trial court clearly identified the
date of conduct supporting this charge, August 15. This was the correct
response, and Tousant does not identify any additional information that was
necessary to address the jury’s confusion. There was no abuse of discretion.
VII.
Tousant Does Not Establish Ineffective Assistance of Counsel.
Tousant broadly asserts he received ineffective assistance of counsel for
any objections we find inadequately preserved in the trial court, and thus
forfeited on appeal. This generic argument fails to satisfy the heavy burden
to prevail on an ineffective assistance of counsel claim on appeal.
For that, a defendant must show (1) trial counsel’s performance was
deficient, falling below an objective standard of reasonableness when
measured by prevailing professional norms, and (2) there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) It is
“particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective assistance are more
41
appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013)
57 Cal.4th 986, 1009.)
Relevant here, Tousant forfeited his challenges to the court’s response
to a jury question and the breadth of information permitted by the search
warrant of his cellphone. But Tousant simply states “there was no
conceivable tactical reason not to object to the errors described above.” There
is no indication in the record why counsel did not object to either issue and
there may be satisfactory explanations for both. For the trial court’s response
to the jury, trial counsel may have believed the court corrected any
misconceptions about Tousant’s charged firearm offense. As for the objection
to the search warrant, trial counsel may have believed it would be futile to
object to the breadth of the information sought by the search warrant. (See
People v. Thompson (2010) 49 Cal.4th 79, 122 [“Counsel is not ineffective for
failing to make frivolous or futile motions”].) Where the record is silent on
these points, Tousant’s ineffective assistance claim is “more appropriately
decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997)
15 Cal.4th 264, 266-267.)
VIII.
There Was No Cumulative Error.
Tousant contends the cumulative effect of his identified errors warrant
reversal of the judgment. We have not identified any errors, individual or
cumulative, and reversal is not required. (People v. Coryell (2003)
110 Cal.App.4th 1299, 1309.)
DISPOSITION
The judgment is affirmed.
42
STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
People v. Tousant (A156044)
43
Trial Court:Alameda County Superior Court
Trial Judge: Hon. Kevin R. Murphy
Counsel:
James S. Donnelly-Saalfield, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D.
Share, Leif M. Dautch and Rene A. Chacon, Deputy Attorneys General, for
Plaintiff and Respondent.
44