People v. Nirran W.

Opinion

MERRILL, J.

By a subsequent petition filed July 31, 1987, the Alameda County District Attorney, under section 602 of the Welfare and Institutions Code, alleged that appellant Nirran W. had committed an assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). Following the contested jurisdictional hearing, the court found the allegation to be true. The court ordered Nirran placed in his grandmother’s custody under his probation officer’s supervision.

I

The victim, Charlene Rivera, testified that on June 29, 1987, she was driving her car in Oakland when she saw a van driving down the middle of the street, heading straight for her. Although she swerved to the right to avoid the van, it nearly hit her. Rivera stopped her car and then noticed that the van had also stopped. A young woman from the van came running toward her, calling her insulting names. Rivera then observed several other young people exit the van and run toward her. They were yelling and threatening to give her a beating.

Rivera was hit in the head with a stick that was thrown at her by one of the van occupants. The female van driver then apologized to Rivera. As the two were about to shake hands, a young man hit Rivera on the left side of her face. She became dizzy and was knocked under her open car door. She testified that she felt her jaw dislocate but then pop back in. Someone then

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sprayed mace at her face. Rivera received treatment at a hospital for her injuries.

At the jurisdictional hearing Rivera could not identify Nirran as her assailant. However, the van driver and one van passenger testified at the hearing that Nirran was the individual who hit Rivera. Nirran was the only male in the group. At the time of this incident Nirran stood five feet two inches tall and weighed one hundred and five pounds. He was 13 years and 9 months old at the time.

Before resting, the district attorney requested the court take judicial notice of a June 25, 1987, minute order which showed that in the earlier Welfare and Institutions Code section 602 proceeding, just four days before the assault in the instant case, Nirran had been examined and found to appreciate the wrongfulness of his conduct within the meaning of Penal Code section 26 in connection with a battery committed against a teacher on school property. Defense counsel objected on the grounds that Nirran had not been given advance notice of the request to take judicial notice and that the minute order was irrelevant. The court agreed that Nirran was entitled to notice and offered to continue