People v. Tousant

• Citation: 278 Cal.Rptr.3d 900,64 Cal.App.5th 804
• Decision Date: 26 May 2021
• Docket Number: A156044
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jamell TOUSANT, Defendant and Appellant.

64 Cal.App.5th 804

278 Cal.Rptr.3d 900

The PEOPLE, Plaintiff and Respondent,

v.Jamell TOUSANT, Defendant and Appellant.

A156044

Court of Appeal, First District, Division 2, California.

Filed May 26, 2021

As Modified on Denial of Rehearing June 24, 2021

Certified for Partial Publication.^*

James S. Donnelly-Saalfield, Sausalito, 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.

STEWART, J.

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.

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 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 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."

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."

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 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...