In re Alex C.

Filed 9/7/06 In re Alex C. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. William Silveira, Jr., Judge.

Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Alex C. was declared a ward of the juvenile court based on a petition filed in March 2003. Four subsequent petitions were filed, alleging new criminal acts. The issues before this court are concerned with the second to last petition filed in June 2005. Following a contested jurisdictional hearing, the juvenile court sustained all the allegations in the petition, finding appellant had committed three offenses, including attempted second-degree robbery with a gang enhancement (Pen. Code,^[1] §§ 664, 211, 186.22, subd. (b)(1); count 1), misdemeanor battery (§ 242/243; count 2), and misdemeanor possession of an alcoholic beverage by a minor (Bus. & Prof. Code,

§ 25662, subd. (a); count 3). The juvenile court committed appellant to the California Youth Authority (CYA) for a maximum period of confinement of nine years one month.

On appeal, appellant contends: (1) the evidence was insufficient to support the juvenile court's finding of attempted robbery; (2) if the striking of the victim was the force used to commit the attempted robbery, the juvenile court should have stayed his sentence for misdemeanor battery pursuant to section 654; (3) the evidence was insufficient to support the juvenile court's finding of possession of an alcoholic beverage; (4) the evidence was insufficient to support the gang enhancement for the attempted robbery; and (5) the court abused its discretion in committing appellant to the California Youth Authority (CYA). We agree with appellant's third contention because, as the People acknowledge on appeal, the prosecution presented no evidence the beer bottle appellant wielded during the underlying incident contained any alcohol, and we find no other circumstances from which appellant's possession of alcohol could be reasonably inferred. Accordingly, we reverse the juvenile court's true finding on count 3. In all other respects, the judgment is affirmed.

FACTS

In June 2005, Ida E. was sitting in a path or walkway in Visalia after school. As she was sitting, Ida was approached by appellant and a boy she referred to as appellant's cousin. Appellant was wearing a red shirt and khaki pants.

Appellant asked Ida what she was looking at, and then told his companion to get her purse. Appellant's companion started pulling on Ida's purse. He pulled it three or four times. Ida resisted and swung her purse at him. A witness several houses down saw Ida hit one of the boys with her purse. He also saw the boys trying to pull Ida's purse away from her. It sounded like the three were arguing.

Ida testified that during the purse-pulling part of the incident, appellant used profanity and told her she was lucky she was a girl or else he would hit her. When asked if appellant made any gestures towards her, Ida testified: â€