In re Ronald P.

Filed 7/7/06 In re Ronald P. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

After a contested jurisdictional hearing, the court found true the allegation of a Welfare and Institutions Code section 602 petition that Ronald P. (hereafter, Ronald, or the minor) assaulted W. P. by means of force likely to produce great bodily injury, and assaulted Luis M. with a deadly weapon. In its dispositional order, the court declared Ronald to be a ward of the court and placed him on probation subject to certain conditions.

On appeal, Ronald contends: (1) the court should have granted his motion to suppress W. P.'s, and another prosecution witness's, in-court and pretrial identification of him, because school officials used suggestive photo and show-up procedures on the day after the assault that created a substantial risk of misidentification in violation of his due process rights; (2) there is no substantial evidence to support the jurisdictional finding that he committed the assaults; and (3) a remand is necessary because the court failed to declare whether the offenses were misdemeanors or felonies in accordance with Welfare and Institutions Code section 702.

Facts

The Assaults

W. P. testified that on February 2, 2005, as he was leaving school he encountered four Asian boys he recognized as fellow students. He knew that one was named Ronald, and the other Tony. Ronald asked W. P. for the phone number and address of another boy, named Jose. W. P. told Ronald he did not have that information.

W. P. walked toward a bus stop at 33rd Avenue. He was followed by a group of his friends, including Jose, Eric, F. S., Luis and Diego. At the bus stop Ronald and Tony again approached W. P., and asked for Jose's phone number and address. As W. P. turned to his left to talk to a girl, he saw a punch coming from Tony, which struck him in the face. W. P. fell to the ground, and other people in the group that had formed a semi-circle behind Tony moved in and started to hit and kick W. P. W. P. identified Ronald as one of the boys who kicked him. W. P. saw some people in a black car drive up, get out, and kick him too. W. P. suffered injuries to his head, a black eye, a swollen face, and a cut to his arm. He was missing his watch, and $20 he had in his wallet. A girl named Vivien had taken his cell phone and damaged it. He went to a friend's house and applied ice to his injuries. He called his mother, and she advised him to call the police, which he did.

Officer Cheung responded to the call, and met W. P. and his father around 3:00 p.m. on February 2, 2005. W. P. had visible facial injuries. He reported that a black Honda had pulled up to the bus stop, and that three or four Asians jumped out and started to punch and kick him. He reported that one of his attackers took his wallet and $20. He told the officer that he had never seen his assailants before. The officer knew from his experience that high school students do not like to tell on their fellow students, and sensed that W. P. was not telling him everything. He suggested that W. P. look at the high school yearbook and try to identify the suspects.

F. S. testified that, as he left school on February 2, 2005, he too was approached by a group of six or seven Asian males he recognized as students from his school, including one who was in his history class, named Ronald. One of the boys asked F. S. for Jose's number. F. S., who knew Jose was having â€