People v. Khamphouy S.

12 Cal. App. 4th 1130, 15 Cal. Rptr. 2d 882, 93 Daily Journal DAR 1276, 93 Cal. Daily Op. Serv. 676, 1993 Cal. App. LEXIS 64

• Court: California Court of Appeal
• Decided: January 26, 1993
• Docket: D016240
• Status: Published

Opinions

Opinion

TODD, J.

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 arrested the driver for being under the influence and placed him in the back seat of the patrol car. While Little was speaking to the passenger sitting in the passenger seat nearest the door, McCracken noticed a gun on the car floor. McCracken yelled “gun” and Little ordered the right front passenger to lie on the ground, handcuffing him. While McCracken covered Khamphouy with a drawn weapon, Little ordered Khamphouy out of the car, put him on the ground and handcuffed him. Little found eight .38-caliber rounds in Khamphouy’s right jacket pocket and five such rounds in his right front pants pocket. The 13 bullets from Khamphouy’s jacket and pants were put into separate evidence bags. McCracken noted the eight .38-caliber rounds from Khamphouy’s jacket pocket were CCI brand ammunition, a cheap quality ball-type round with an aluminum casing.

After Khamphouy and the other passenger were handcuffed, McCracken searched the car and recovered two handguns from the floor under the passenger’s seat. He found a .357 magnum directly beneath where Khamphouy was sitting and a .38 revolver about in the middle of the seat below where Khamphouy’s right thigh was when he was in the car. Each gun was loaded with six .38-caliber rounds.

To make the guns safe and storable, McCracken took the rounds out of the guns. McCracken noted the rounds in the .38 revolver were CCI brand rounds and the .357 magnum contained various other brands of .38 rounds. He placed the bullets from the guns in two separate evidence bags. In addition, McCracken found under the passenger seat a bag containing different varieties of different manufactured brands of .38 rounds, and he placed this in another evidence bag.

Khamphouy contends the record lacks sufficient evidence he possessed live ammunition and the trial court erred in committing him to the juvenile ranch facility.

Discussion

I

Section 12101, subdivision (b) provides:

“A minor may not possess live ammunition unless he or she has the written consent of his or her parent or legal guardian or is accompanied by his or her parent or legal guardian, except while going to or from an organized lawful recreational or competitive shooting activity or lawful hunting activity.”

Khamphouy argues the record lacks evidence the ammunition he possessed was live. We may not reverse an order on the ground of insufficient evidence unless it clearly appears “that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755 [457 P.2d 321].) “Substantial” evidence is evidence of legal significance, reasonable in nature, credible and of solid value. (People v. Samuel (1981) 29 Cal.3d 489, 505 [174 Cal.Rptr. 684, 629 P.2d 485].) The court must review the whole record in the light most favorable to the order below and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. (See Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573-574, 99 S.Ct. 2781].)

It is axiomatic the prosecution bears the burden of proving each element of a criminal offense charged beyond a reasonable doubt. (People v. Montalvo (1971) 4 Cal.3d 328, 333 [93 Cal.Rptr. 581, 482 P.2d 205]; People v. Vargas (1973) 36 Cal.App.3d 499, 506 [111 Cal.Rptr. 745]; § 1096.) Just as the prosecution must establish the chemical nature of restricted dangerous drugs discovered in the possession of a defendant under relevant controlled substances statutes (see, e.g., People v. Torres (1982) 133 Cal.App.3d 265, 279 [184 Cal.Rptr. 39]; People v. Carnesi (1971) 16 Cal.App.3d 863, 869-871 [94 Cal.Rptr. 555]), so must it prove the ammunition possessed by the minor is “live” to establish a violation of section 12101, subdivision (b). “Live ammunition” as contemplated by the Legislature under this statute consists of any material (i.e., projectiles, shells, or bullets) in the present state of being capable of being fired or detonated from a pistol, revolver or any firearm. (See § 12001, subds. (a) and (b); Random House Dict. (2d ed. 1987) p. 69; Amer. Heritage Dict. (2d college ed. 1976) p. 43.)

Here, at the jurisdictional hearing, defense counsel challenged the sufficiency of the evidence regarding whether the ammunition found on Khamphouy was in fact live.² The court responded, however, it looked live.³ The record contains evidence Khamphouy had thirteen .38-caliber rounds in his pockets. Under the seat on which he was sitting were two guns which McCracken describes as “loaded” with .38-caliber rounds. The brand of ammunition found in Khamphouy’s jacket pocket was the same as the bullets in the .38 revolver. The rounds found in Khamphouy’s pockets appeared live to the court which by clear implication rejected the notion that evidence of testing the ammunition was necessary. From the officers’ actions in dealing with the situation as a matter of utmost gravity after a gun was first seen, including not only unloading the guns to make them “safe” but also carefully collecting, separating and describing the types of ammunition found, it is a reasonable inference based on solid evidence that the ammunition was live. Why else would the officers have so carefully dealt with the ammunition? There was substantial circumstantial evidence the ammunition in Khamphouy’s pockets was live ammunition. The trial court did not err in entering a true finding Khamphouy possessed live ammunition.

II

The court followed the probation department’s recommendation and committed Khamphouy to the ranch. Khamphouy contends this was error.

“An order of disposition, made by the juvenile court, may be reversed by the appellate court only upon a showing of an abuse of discretion. . . .” (In re Darryl T. (1978) 81 Cal.App.3d 874, 877 [146 Cal.Rptr. 771].) It is not the responsibility of this court to determine what we believe would be the most appropriate placement for a minor. This is the duty of the trial court, whose determination we reverse only if it has acted beyond the scope of reason. (People v. Giminez (1975) 14 Cal.3d 68, 72 [120 Cal.Rptr. 577, 534 P.2d 65].) The court reasonably determined that a camp commitment was appropriate for a 17-year-old with Khamphouy’s escalating criminal conduct which violated the conditions of probation.

The juvenile court did not abuse its discretion in committing Khamphouy to the juvenile ranch facility.

Order affirmed.

Benke, J., concurred.

1 All statutory references are to the Penal Code.

2 Khamphouy’s counsel argued: “Finally as to count five. Your Honor, there was no testimony whatsoever that any of those rounds shown to this court were live. Not one was test fired. No one asked a question about whether the ammunition appeared to be new, old, or whether it had any load of gunpowder whatsoever. [5] Again, insufficient evidence to support beyond a reasonable doubt.”

3 The court responded: “That’s based upon circumstantial evidence that is before me in terms of the ammunition that was found on his person compared with the ammunition found on [sic] the weapon, compared to the extra ammunition found in the gun. [J] And I think I can use common sense in looking at the ammunition. It looks live to me. I wouldn’t put it in a gun and shoot it.”