In Re Khamphouy S.

Khamphouy S. appeals a juvenile court order committing him to the juvenile ranch facility following true findings he unlawfully possessed live ammunition (Pen. Code, 1 § 12101, subd. (b)) and violated conditions of probation.

On June 12, 1991, the juvenile court placed Khamphouy on probation following a true finding he committed grand theft from a person (§ 487, subd. 2). On February 11, 1992, the court found he possessed live ammunition and violated probation conditions by having control of a loaded firearm and being out after curfew. The court found the previous disposition had *1133 been ineffective. It continued the wardship and committed Khamphouy to the juvenile ranch facility for a maximum of 240 days.

At approximately 2:30 a.m. on December 22, 1991, California Highway Patrol Officer Timothy Little was with his partner Mike McCracken on Highway 5 south of downtown San Diego. Little pulled over a vehicle for speeding and weaving. Three people were in the front seat. Khamphouy was in the middle. Little approached the car. He noticed the odor of alcohol. The driver gave him the car’s registration, but had no license. After a field sobriety test, Little arrested the…

I respectfully dissent. Although the majority recognizes the prosecution must establish beyond reasonable doubt the ammunition taken from Khamphouy’s pockets was “live,” i.e. that it was presently capable of being detonated from a firearm, it accepts that element as being established in a case where the People made no attempt to present evidence on that point, and none exists. Instead, the majority makes assumptions which this record does not support. The majority’s conclusion founders on the shoals of the proposition stated in Marshall v. Parkes (1960) 181 Cal.App.2d 650, 655 [ 5 Cal.Rptr. 657 ]:

The majority relies on evidence that Khamphouy had .38-caliber cartridges in his pockets which were similar to others found in a .38 revolver which was retrieved beneath the car seat on which he was sitting. Officer McCracken described this gun as being “loaded” and stated he removed these cartridges and then described the gun as “safe.” In addition, the majority describes his actions as “carefully” collecting, separating and describing the types of ammunition found and distills from its characterization that there is a “reasonable inference based on solid evidence that the ammunition…

Khamphouy S. appeals a juvenile court order committing him to the juvenile ranch facility following true findings he unlawfully possessed live ammunition (Pen. Code, [1] § 12101, subd. (b)) and violated conditions of probation.

On June 12, 1991, the juvenile court placed Khamphouy on probation following a true finding he committed grand theft from a person (§ 487, subd. 2). On February 11, 1992, the court found he possessed live ammunition and violated probation conditions by having control of a loaded firearm and being out after curfew. The court found the previous disposition had been ineffective. It continued the wardship and committed Khamphouy to the juvenile ranch facility for a maximum of 240 days.

At approximately 2:30 a.m. on December 22, 1991, California Highway Patrol Officer Timothy Little was with his partner Mike McCracken on Highway 5 south of downtown San Diego. Little pulled over a vehicle for speeding and weaving. Three people were in the front seat. Khamphouy was in the middle. Little approached the car. He noticed the odor of alcohol. The driver gave him the car's registration, but had no license. After a field sobriety test, Little…