PEOPLE v. TOLIVER

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Court of Appeal, Second District, Division 4, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Stanley Marvin TOLIVER, Defendant and Appellants.*

Cr. 26947.

Decided: March 08, 1976

Cary G. Branch, Los Angeles, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Andrew D. Amerson, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was charged with and, after a trial to the court, was convicted of assault with a deadly weapon on a police officer, in violation of subdivision (b) of section 245 of the Penal Code.1 He was granted probation. He has appealed from that judgment. (Pen.Code, s 1237.) We reverse.

The People's version of the facts was as follows:

Police officers, acting on information received, went to an apartment on Rodeo Road in the City of Los Angeles, to conduct a narcotics investigation. The officers were not in uniform. They identified themselves to the then occupants of the apartment and were admitted. Search of the apartment disclosed narcotics and the then occupants were arrested. While the officers were in the apartment, a series of telephone calls took place, leading the officers to believe that a person named either Stanley Johnson or Stanley Toliver would soon come to the apartment to engage in a narcotic transaction. In due time, defendant Toliver arrived, opened the door with a key and was accosted by the officers. One officer displayed his badge and identified himself as a police officer. Defendant turned and ran away, screaming unidentifiable sounds. The officers chased him, firing at him as they ran. As defendant reached another building, the officer immediately chasing defendant slipped and fell. Defendant, who stood 6 feet 2 inches tall and weighed about 190 pounds, attempted to stomp on the officer's face, but the officer escaped injury by rolling over. Defendant was then restrained and arrested.

Defendant testified as follows:

His only connection with the apartment was that one of the occupants was caring for his dog. He had gone to the apartment solely to pay for the dog's keep and not in response to any telephone conversation. He did not have a key to the apartment. When the door was opened at his knock he was confronted by armed men, in casual or hippy dress. He thought they were robbers, was scared and ran, calling ‘Police.’ The shooting during the chase only scared him more. He had attempted to kick the officer in self-defense.

I

On this appeal, defendant claims that the trial court erred in denying his requests for the identity of the informant on whose tip the investigation had begun.

The request for the identity of the inforer was first made by a pretrial motion. That motion was argued and denied. The request was renewed during trial and was again denied. The briefs and supplemental briefs argue at length whether the in-trial motion came too late and was, therefore, properly denied on that ground. We need not, and do not, consider that issue. The denial of the pretrial motion is reviewable on this appeal from the judgment. (Honore v. Superior Court (1969) 70 Cal.2d 162, 167, fn. 5, 74 Cal.Rptr. 233, 449 P.2d 169.) We turn, thus, to consider the merits of that pretrial motion. We conclude that it was improperly denied.

While the identity of an informer need not be disclosed if the tip received from him went only to the issue of probable cause or to the propriety of instituting an investigation, his identity must be disclosed if he is a material witness on the issue of guilt or innocence. In People v. Perez (1965), 62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934, the identity of an informer was required to be disclosed where he might have supported the defense claim that defendants were unaware of the nature of the contents of bags in their room; in People v. McShann (1958), 50 Cal.2d 802, 330 P.2d 33, the identity of an informant was held material because he might have corroborated the defendant's claim that he had not received a telephone call relied on by the prosecution to corroborate other testimony; in Honore v. Superior Court (1969), 70 Cal.2d 162, 74 Cal.Rptr. 233, 449 P.2d 169, identity of an informant was compelled where he might have shed light on whether defendant had knowledge of narcotics discovered in her apartment. A defendant need not show that the identity of an informant will, in fact, lead to favorable testimony. In Honore, supra, the Supreme Court said (at p. 168, 74 Cal.Rptr. at p. 236, 449 P.2d at p. 172):

‘Defendants need not prove that the informer could give testimony favorable to them in order to compel disclosure of his identity nor need they show that he was a participant in or an eyewitness to the crime. (People v. Garcia, supra, 67 Cal.2d 830, 837, 64 Cal.Rptr. 110, 434 P.2d 366.) Their burden extends only to a showing that ‘in view of the evidence, the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial.’ (People v. Williams (1958) 51 Cal.2d 355, 359 (333 P.2d 19).) ‘That burden is discharged, however, when defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant's exoneration. ‘No one knows what the undisclosed informer, if produced, might testify. He might contradict or persuasively explain away the prosecution's evidence. It is the deprival of the defendants of the opportunity of producing evidence which MIGHT (original emphasis) result in their exoneration which constitutes the error in this case, and we cannot assume because the prosecution evidence may seem strong that the undisclosed evidence might not prove sufficient to overcome it in the minds of the jurors.’ (Italics added.) (People v. Castiel (1957) 153 Cal.App.2d 653, 659 (315 P.2d 79).)' (Original italics.) (People v. Garcia, supra, 67 Cal.2d 830, at pp. 839—840, 64 Cal.Rptr. 110, 116, 434 P.2d 366, 372.)'

Nor need the informant necessarily have been an eyewitness to the alleged crime. (People v. Garcia (1967) 67 Cal.2d 830, 837, 64 Cal.Rptr. 110, 434 P.2d 366; People v. McShann, supra.)

We regard the principles set forth in the cited cases as controlling here. Admittedly, the informer was not a witness to the assault. But, if identified, he might have testified in support of defendant's claim that he was not involved in the narcotic trade and had no knowledge of or involvement therein. The telephone calls monitored by the officers had identified a ‘Stanley Johnson’ as a name of the potential visitor. If the informant had been identified and testified, he might have absolved defendant of any connection either with the narcotic activity or the telephone call. So corroborated, the trial court might have believed the rest of defendant's testimony—I.e., that he did not, in his fright, recognize the officer's badge or understand his announcement of his status, that he did call for police help as he attempted to escape from what he thought was an attempt to rob him and that he had acted in self-defense in attempting to kick the officer. In other words, corroborated by the informer, the trial court might have found him not guilty or (believing part but not all of his story) have convicted him either of simple assault or of a violation of subdivision (a) of section 245. The denial of the request for the informer's identity was an error requiring a reversal.

II

Since we must reverse for the reason above stated, we need not, and do not, discuss other contentions here made, because the events therein involved are not likely to arise on a retrial. However, one matter is certain to arise on any retrial and, pursuant to the command of section 53 of the Code of Civil Procedure, we do consider it.

Defendant contends that his conduct did not involve the use of a deadly weapon. We are not cited to, nor have we found, any California cases involving that issue. California cases have held that the offense of assault by means of force likely to produce great bodily injury can, in the judgment of a jury, be found to have been committed by the use of fists or by kicking. (1 Witkin, Cal. Crimes (1963), s 271, p. 255, and authorities there cited.) We conclude that the same rule applies in the case of an assault with a deadly weapon, where there is an attempt to injure another by kicking or stomping with a shod foot. Whether the use of a shoe, under those circumstances, involves the use of a deadly weapon, involves factual questions related to the size and weight of the shoe, the size of the assailant and the posture of the victim, among other factors. Such factual issues are for the jury (1 Witkin, Cal. Crimes (1963), ss 266, 267, pp. 251—253.) We cannot say, as defendant urges us to do, that the shoe herein involved, uses as it was, by this defendant was, as a matter of law, not a ‘deadly weapon.’

The judgment is reversed.

I do not know of any authority for requiring identification of an informant who could only give testimony relating to a collateral issue. This is not a case where the informer could give any testimony relevant to guilt or innocence of the charge of assault.

The majority opinion at page 889 overstates the case by saying the informant ‘might have absolved defendant of any connection’ with narcotic activity. The most the informant could have said would have been that he did not know defendant was connected with narcotics.

That testimony would be material only upon the assumption (a) that if the informant did not know defendant was connected with narcotics, he probably was not, and (b) a person not connected with narcotics who fights an officer is more likely to have done so mistakenly than someone connected with narcotics. The first premise is tenuous and the second is pure speculation.

I would affirm the judgment.

FOOTNOTES

1.  Originally, defendant was charged jointly with another person on narcotic violation counts. Because of trial proceedings now immaterial, only the assault count is before us.

KINGSLEY, Associate Justice.

DUNN, J., concurs.

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