In re K.A. CA1/3

Filed 4/16/14 In re K.A. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re K.A., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. A138808 K.A., (Alameda County Defendant and Appellant. Super. Ct. No. SJ12018517)

K.A. (appellant), born in 1995, appeals from jurisdictional and dispositional orders in which the juvenile court found true the allegations that he committed robbery (Pen. Code, § 2111) and assault likely to produce great bodily injury (§ 245, subd. (a)(4)), and resisted a peace officer (§ 148, subd. (a)). Appellant contends: (1) his trial counsel provided him with ineffective assistance of counsel because he failed to introduce a photograph into evidence and to impeach the victim with the photograph regarding the type of shoes appellant was wearing at the time of the incident; and (2) remand is required for an express declaration as to whether the assault is a misdemeanor or felony. As the Attorney General (respondent) concedes, the matter must be remanded for the

1 All further statutory references are to the Penal Code unless otherwise stated.

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juvenile court to state whether the assault was a misdemeanor or a felony. In all other respects, the orders are affirmed. FACTUAL AND PROCEDURAL BACKGROUND On May 22, 2013, an amended wardship petition was filed (Welf. & Inst. Code, § 602, subd. (a)) alleging appellant committed felony robbery (§ 211), felony assault likely to produce great bodily injury (§ 245, subd. (a)(4)), and misdemeanor resisting a peace officer (§ 148, subd. (a)). The petition further alleged that appellant had previously been found to have caused injury while evading a peace officer (Veh. Code, § 2800.3). After a contested jurisdictional hearing, the juvenile court made true findings on all of the above counts. The court set the maximum time of confinement at nine years, four months. At approximately 11:00 p.m. on March 20, 2013, 27-year-old Alexis O’Neal, employee at a department store located near a Bay Area Rapid Transit (BART) station, had finished work and was walking towards the BART station when she saw three young men walk towards—and continue past—her. One of them was wearing a black hoodie, and another had on a light hoodie and red and white shoes. The third person was wearing blue jeans but she “couldn’t make out the rest.” O’Neal continued walking and entered a parking lot that was located behind the BART station. Hearing footsteps, she turned around and saw a young African American man with a black hoodie, blue jeans and “an afro,” crouched on the ground to her right. She looked the other way and saw another young African American man wearing a light gray hoodie, blue jeans, and red and white shoes. In court, O’Neal identified the man with the light gray hoodie as appellant. She testified that appellant was one of the three men who had walked towards her and passed by her before she reached the parking lot. When O’Neal tried to run, appellant tripped her, causing her to fall face first to the ground. A third individual joined in, and all three kicked O’Neal and punched her in the face with closed fists. Appellant punched her in the eye. After being attacked for “[a]bout five to ten minutes,” O’Neal was able to look up and identify who was who. The man with the black hoodie took her messenger bag, which contained her laptop