In re Tony L.

Filed 7/10/06 In re Tony L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Tony L. (hereafter Tony, or the minor) assaulted W. P. by means of force likely to produce great bodily injury. In its dispositional order, the court declared Tony to be a ward of the court and placed him on probation subject to certain conditions.

On appeal, Tony contends that there is no substantial evidence to support the jurisdictional finding that he assaulted W. P. Tony also contends that 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.

Facts

The Assault

W. P., the victim, testified that on February 2, 2005, as he was leaving school he encountered four Asian boys, two of whom 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 one of the girls, 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 with Tony started to hit and kick W. P. 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€