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 These convictions stem from incidents occurring on three different dates: July 7, 2001, 1

July 21, 2001 and August 29, 2001.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RANDHIR K. SINGH,

Petitioner, No. CIV S-04-2120 DFL JFM P 

vs.

A.P. KANE, Warden, et al., ORDER AND

Respondents. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding pro se with an application for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 convictions for

possession of methamphetamine for sale (3 counts), possession of methamphetamine while

armed with a loaded shotgun, possession of methamphetamine, assault with a deadly weapon and

deterring an officer from performing his duty. Petitioner claims that there was insufficient 1

evidence to support several of his convictions, and that the trial court erred by omitting an

element of the offense in instructing the jury as to the charge of possession of methamphetamine

while armed with a loaded shotgun. 

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 The facts are taken from the opinion of the California Court of Appeal for the Fifth 2

Appellate District in People v. Singh, No. C043114 (June 24, 2004), a copy of which is attached

as Exhibit D to Respondent’s Answer, filed December 23, 2004.

2

FACTS2

In the summer of 2001, [petitioner] was arrested three times within

eight weeks, resulting in an amended information charging him

with seven felonies. On July 7, 2001, [petitioner] was found in a

hotel room with over 54 grams of methamphetamine and a loaded

shotgun. He was charged with possession of methamphetamine

with intent to sell (Health & Safety Code, § 11378 – count one),

possession of methamphetamine while armed with a loaded

shotgun (id., § 11370.1, subd. (a) – count two), and possession of

methamphetamine (id., § 11377, subd. (a) – count three). As to

count two, it was further alleged [petitioner] was personally armed

with a firearm during the commission of the offense (Pen. Code,

§ 12022, subd. (c)).

After being released on bail on these charges, two weeks later on

July 21, 2001, [petitioner] was found in an office at a car

dealership with a large block of methamphetamine, a glass pipe, a

scale, and a 40-ounce beer bottle. When police arrived, [petitioner]

resisted arrest, fought the officers, and threw the beer bottle at an

officer’s head. Additional charges were filed against [petitioner],

including possession of methamphetamine with intent to sell

(Health & Saf. Code, § 11378 – count four) and assault with a

deadly weapon (Pen. Code, § 245, subd. (c) – count five). As to

each of these counts, it was further alleged that [petitioner]

committed these offenses while released from custody pending trial

in another matter (Pen. Code § 12022.1).

Approximately one month later, on August 29, 2001, [petitioner]

was met at an apartment by deputy sheriffs. When they attempted

to arrest him, he fought them, throwing punches and kicking them. 

He was in possession of over 29 grams of methamphetamine. 

Once again, additional charges were added to the information. 

[Petitioner] was charged with possession of methamphetamine

with intent to sell (Health & Saf. Code, § 11378 – count six), and

felony resisting arrest (Pen. Code, § 69 – count seven). It was

further alleged as to each of these charges that [petitioner]

committed these offenses while released from custody pending trial

in another matter (Pen. Code, § 12022.1). 

(People v. Singh, slip op. at 2-3.) 

/////

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3

ANALYSIS

I. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in

state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d). 

Under section 2254(d)(1), a state court decision is “contrary to” clearly

established United States Supreme Court precedents if it applies a rule that contradicts the

governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially

indistinguishable from a decision of the Supreme Court and nevertheless arrives at different

result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06

(2000)). 

Under the “unreasonable application” clause of section 2254(d)(1), a federal

habeas court may grant the writ if the state court identifies the correct governing legal principle

from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the

prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ

simply because that court concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63,

123 S.Ct. 1166, 1175 (2003) (it is “not enough that a federal habeas court, in its independent

review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”)

The court looks to the last reasoned state court decision as the basis for the state

court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court

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 Petitioner also contends he could not be properly convicted of both possession of 3

methamphetamine with intent to sell and the lesser included offense of possession of

methamphetamine. However, petitioner’s conviction for simple possession of methamphetamine

on July 7 (count three) was reversed on direct appeal. (People v. Singh, slip op. at 4.)

4

reaches a decision on the merits but provides no reasoning to support its conclusion, a federal

habeas court independently reviews the record to determine whether habeas corpus relief is

available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

II. Petitioner’s Claims

A. Insufficient Evidence re July 7, 2001 Charges

Petitioner’s first and second claims for relief are that there was insufficient

evidence to support the convictions on counts one and two, possession of methamphetamine with

intent to sell, and possession of methamphetamine while armed with a loaded shotgun, which

stemmed from the July 7, 2001 charges. Petitioner alleges there was insufficient evidence to

demonstrate petitioner had dominion or control over the methamphetamine found in hotel room

251. Petitioner contends a person by the name of Antonelli had control over the room as

Antonelli’s personal possessions were the only ones found in the room, and a person by the name

of Garcia opened the door to the police. Petitioner contends the fact that a small amount of

methamphetamine was found in petitioner’s pocket was insufficient to link petitioner to

ownership of the large amount of methamphetamine found between the beds in the hotel room.3

Petitioner further alleges that there was insufficient evidence to demonstrate petitioner was aware

there was a shotgun in the room.

These claims were rejected by the state appellate court in its ruling on petitioner’s

direct appeal. People v. Singh, slip op. at 7. The court reasoned as follows:

Possession may be actual or constructive. (People v. Rogers

(1971) 5 Cal.3d 129, 134.) Constructive possession occurs when

the [petitioner] maintains control or the right to control the drugs;

it may be imputed when the drugs are found in a place that is

immediately accessible to the [petitioner] and subject to his

exclusive or joint dominion and control. (People v. Newman

(1971) 5 Cal. 3d 48, 52-53, overruled on other grounds in People v.

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 The record does not directly indicate [petitioner] was facing the methamphetamine. 4

However, the evidence is that [petitioner] was seated on the bed nearest the door, with his back

to the door, facing the opposite bed. The methamphetamine was on the floor between the beds;

accordingly, [petitioner] was facing toward the other bed and the methamphetamine.

5

Daniels (1975) 14 Cal.3d 857, 862.) The elements of possession

may be established by “circumstantial evidence and any reasonable

inferences drawn from such evidence; and neither exclusive

possession of the premises by nor physical possession of the drug

is required.” (People v. Harrington (1970) 2 Cal.3d 991, 998.)

Here, police had received a tip that Antonelli was selling

methamphetamine out of the hotel room. Antonelli was in the

parking lot of the hotel and had left [petitioner] and Garcia in his

hotel room with 54 grams of methamphetamine, a digital scale, a

sawed-off shotgun and ammunition. All of these items were left in

plain sight. [Petitioner] was seated on the bed where the shotgun

and shotgun shells were located and was facing the two bags of

methamphetamine on the floor between the beds.

4

Contrary to [petitioner’s] suggestion that he was simply in the

room to purchase methamphetamine, it is highly unlikely Antonelli

would have left a significant quantity of methamphetamine, a

sawed-off shotgun, and ammunition in his hotel room with

someone who was merely a buyer. In fact, it is unlikely he would

have left these items with people not knowingly involved in the

sales activities. Given the quantity of methamphetamine, its

location at [petitioner’s] feet, the sawed-off shotgun and

ammunition and their location on the same bed with [petitioner],

and the digital scale, it was reasonable for the jury to conclude

[petitioner] was in constructive possession of both the

methamphetamine and the shotgun.

While others may have had access to the methamphetamine and the

shotgun in the hotel room, and the methamphetamine and shotgun

may in fact have belonged to Antonelli, there was sufficient

evidence of [petitioner’s] constructive possession of these items.

(People v. Singh, slip op. at 8-9.) 

[Petitioner] overstates the case when he characterizes the gun as

“hidden.” The shotgun was partially concealed by a pillow. 

However, the butt end of the gun and a clip with blue shotgun

shells were immediately visible and readily identifiable to Officer

Edward Rosenbrook upon entering the room. [Petitioner] was

sitting on the same bed on which the shotgun was located. It is a

reasonable inference from this evidence, that [petitioner] knew the

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6

shotgun was under the pillow. Accordingly, there was substantial

evidence to support the finding that [petitioner] knew the gun was

under the pillow. (Footnote omitted.)

(People v. Singh, slip op. at 10-11.)

When a challenge is brought alleging insufficient evidence, federal habeas corpus

relief is available if it is found that upon the record evidence adduced at trial, viewed in the light

more favorable to the prosecution, no rational trier of fact could have found proof of guilt beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under Jackson, the court

must review the entire record when the sufficiency of the evidence is challenged on habeas. 

Adamson v. Ricketts, 758 F.2d 441, 448 n.11 (9th Cir. 1985), vacated on other grounds, 789 F.2d

722 (9th Cir. 1986) (en banc), rev’d, 483 U.S. 1 (1987). It is the province of the jury to ‘resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Jackson, 443 U.S. at 319. “The question is not whether we are

personally convinced beyond a reasonable doubt. It is whether rational jurors could reach the

conclusion that these jurors reached.” Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991). The 

federal habeas court determines sufficiency of the evidence in reference to the substantive

elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16. 

The prosecution “need not affirmatively 'rule out every hypothesis except that of guilt'; and . . . a

reviewing court 'faced with a record of historical facts that supports conflicting inferences must

presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any

such conflicts in favor of the prosecution, and must defer to that resolution.'" Wright v. West,

505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326)).

After reviewing the entire record, this court finds that the state court’s conclusion

that there was sufficient evidence to establish petitioner’s guilt beyond a reasonable doubt is not

an unreasonable application of the federal due process standards set forth above.

Although petitioner argues the methamphetamine belonged to either Antonelli or

Garcia, and that he was not involved in selling the methamphetamine, there was substantial

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evidence from which a jury could infer that petitioner was involved in the sale of

methamphetamine and had sufficient dominion and control over the drugs and sawed-off shotgun

found in the room. Petitioner was present in the hotel room with a digital scale, a large amount

of methamphetamine, a sawed-off shotgun and ammunition. Antonelli, who was apparently the

renter of the room, was in the parking lot at the time law enforcement knocked on the door. 

These are sufficient facts from which a reasonable jury could infer petitioner’s involvement in

the sale of drugs. 

Petitioner does not dispute that the “butt end” of the shotgun was sticking out;

rather, he claims the prosecution failed to present evidence petitioner ever saw the gun. (Petition

at 5(a).) The prosecution presented evidence that the shotgun was only partially concealed and

was immediately and “readily identifiable” as a loaded shotgun by an officer who entered the

hotel room. (RT 261-62.) Petitioner was sitting on the same bed as the shotgun. These facts are 

sufficient to raise an inference that petitioner had knowledge and constructive possession of the

shotgun. 

On February 6, 2006, petitioner filed a request for judicial notice, asking the court

to consider People v. Pitto, 35 Cal.Rptr.3d 635 (Cal.App. 1 Dist. 2005). However, by order filed

February 8, 2006, the California Supreme Court ordered sua sponte review of this case and

directed the parties to brief particular questions. People v. Pitto, 40 Cal.Rptr.3d 607 (Cal. 2006). 

No final decision has yet been rendered. Id.

However, the facts in Pitto are distinguishable from the instant action in two

important ways. First, Pitto was not near the pistol at the time of his arrest. In fact, he was

outside the van in which the pistol was located. The pistol was found inside a cardboard box

behind the driver’s seat, inside a zippered pouch. The pistol was not loaded. Six rounds of

ammunition were found in a separate compartment of the pouch.

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8

In the instant action, the shotgun was loaded and found on the same bed on which

petitioner was sitting. Arguably the shotgun was immediately available to petitioner for

offensive or defensive use, thus supporting the "armed with" prong of the charges. 

More importantly, however, Pitto presented key facts during his defense to

counter the prosecution’s argument that Pitto was personally armed with a firearm during the

commission of a felony. Pitto testified that the gun had nothing to do with the

methamphetamine; that he was an addict and heavy user of methamphetamine and had the drug

in the van for personal use, and that he had brought the gun with him because he had been

contemplating suicide. Pitto’s mother and brother corroborated Pitto’s testimony that he had

been depressed and had talked about committing suicide. They also testified that Pitto hated

guns. 

Here, petitioner presented no other evidence to explain the presence of the

firearm. Rather, he alleges he was unaware there was a shotgun in the room on July 7, 2001

because it was hidden under a pillow. 

In light of the above, the state court’s rejection of petitioner’s first and second

claims for relief that there was insufficient evidence to support the convictions on counts one and

two, possession of methamphetamine with intent to sell, and possession of methamphetamine

while armed with a loaded shotgun, was not contrary to or an unreasonable application of federal

law, nor was it based on an unreasonable determination of the facts. Accordingly, these claims

should be denied.

B. Omission of Element of Offense in Jury Instruction

In conjunction with his claim concerning count two, stemming from the July 7,

2001 incident, petitioner claims that the trial court’s failure to instruct the jury on the element of

knowledge (petitioner’s knowledge of the presence of the shotgun) violated petitioner’s right to

due process. Petitioner contends that the trial court was required to inform the jury that “armed”

means “knowingly armed.” Petitioner argues he was prejudiced by this omission because the

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 “Notwithstanding the enhancement set forth in subdivision (a), any person who is 5

personally armed with a firearm in the commission of a violation or attempted violation of

Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6

of the Health and Safety Code, shall be punished by an additional and consecutive term of

imprisonment in the state prison for three, four, or five years.” Cal. Penal Code § 12022, subd.

(c).

 (a) Notwithstanding Section 11350 or 11377 or any other provision 6

of law, every person who unlawfully possesses any amount of a

substance containing cocaine base, a substance containing cocaine,

a substance containing heroin, a substance containing

methamphetamine, a crystalline substance containing

phencyclidine, a liquid substance containing phencyclidine, plant

material containing phencyclidine, or a hand-rolled cigarette

treated with phencyclidine while armed with a loaded, operable

firearm is guilty of a felony punishable by imprisonment in the

state prison for two, three, or four years.

As used in this subdivision, "armed with" means having available

for immediate offensive or defensive use.

(b) Any person who is convicted under this section shall be

ineligible for diversion or deferred entry of judgment under

Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of

the Penal Code.

Cal. Health & Safety Code § 11370.1.

9

prosecution failed to demonstrate petitioner knew the shotgun was there. Petitioner further

contends that the instruction given regarding Cal. Penal Code § 12022, subd. (c), advising the 5

jury that under the statute “armed with a firearm” means knowingly (CT 181; RT 396), and the

omission of an instruction specifically advising that knowledge was an element of the crime that

must be proved with regard to Cal. Health and Safety Code § 11370.1, meant the jury was 6

allowed to believe knowledge was not required to convict petitioner of Cal. Health and Safety

Code § 11370.1. (Petition at 5(b)-(c).)

The last reasoned opinion on this claim is the decision of the California Court of

Appeal for the Third Appellate District on petitioner’s direct appeal. The state court agreed with

petitioner that the jury should have been instructed on the knowledge element as to the Cal.

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Health and Safety Code § 11370.1 charge, but found the error harmless. The state court found as

follows:

We have found no published cases specifically addressing the

knowledge requirement under Health and Safety Code section

11370.1, subdivision (a), nor has either party cited any. As

previously noted, section 11370.1, subdivision (a), defines the term

“armed with “ as having a firearm “available for immediate

offensive or defensive use.” The statute does not mention

knowledge of the firearm. However, the language of Health and

Safety Code section 11370.1, subdivision (a) (“while armed with a

loaded, operable firearm” [italics added]), is nearly identical to that

of Penal Code section 12022, subdivision (c) (“personally armed

with a firearm” [italics added]); accordingly, we use Penal Code

section 12022 as an analytical guide.

Unlike Health and Safety Code section 11370.1, Penal Code

section 12022 does not contain its own definition of “armed with.” 

However, it is well settled under Penal Code section 12022, that

“[a] defendant is armed if the defendant has the specified weapon

available for use, either offensively or defensively.” (People v.

Bland (1995) 10 Cal.4th 991, 997.) The jury instructions for Penal

Code section 12022 mirror this language, defining the term

“‘armed with a firearm’ [as] knowingly to carry a firearm [or have

it available] for offensive or defensive use.” (CALJIC Nos. 17.15

(1998 rev.) (6th ed. 1996), 17.16.1 (6th ed. 1996), italics added.)

Despite the nearly identical language of Health and Safety Code

section 11370.1, the jury instruction for section 11370.1 (CALJIC

No. 12.52 (6th ed. 1996)) does not give the same definition of

“armed with.” CALJIC No. 12.52 defines “armed with” as “having

available for immediate offensive or defensive use.” We can

discern no reason for this omission of the knowledge requirement

other than inadvertence and we urge the CALJIC committee to

promulgate a new instruction including the knowledge

requirement.

Having determined that the trial court erred in failing to instruct the

jury that [petitioner] had to knowingly have the firearm available

for immediate offensive or defensive use, we turn now to the

question of whether such an error was prejudicial. We conclude it

was not.

The misdescription or omission of an element of an offense

“ordinarily requires reversal of a conviction unless the error was

harmless.” But, if no rational jury could have found the missing

element unproven, the error is harmless beyond a reasonable doubt

and the conviction stands. (Neder v. United States (1999) 527 U.S.

1, 19 [144 L. Ed.2d 35, 53]; accord, People v. Flood (1998) 18

Cal.4th 470, 506.)” (People v. Ortiz (2002) 101 Cal.App.4th 410, 416.)

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 The conclusion of the California Court of Appeal that the trial court erred as a matter of 7

state law when it gave CALJIC 1.22 at petitioner’s trial is not reviewable in this federal habeas

11

Here, in connection with the July 7 incident, [petitioner] was

charged with violating both Health and Safety Code section

11370.1, subdivision (a), and Penal Code section 12022,

subdivision (c). The only firearm involved in the July 7 incident

was the sawed-off shotgun under the pillow. With respect to the

Penal Code section 12022 charge, the jury was properly instructed

that “[t]he term ‘armed with a firearm’ means knowingly to carry a

firearm or have it available for offensive or defensive use.” 

(CALJIC No. 17.16.1.) The jury found [petitioner] guilty on this

count. Thus, the jury had to have found that [petitioner] knew of

the presence of the gun partially covered by the pillow. In light of

this finding, no rational jury could have found that [petitioner] was

aware of the gun as to the Penal Code section 12022 charge, but

not aware of the same gun in the same location on the Health and

Safety Code section 11370.1 charge. Thus, in the specific

circumstances of this case, we find the trial court’s error – in

failing to instruct the jury that knowledge of the gun’s presence

was an element of the Health and Safety Code section 11370.1

crime – was harmless.

(People v. Singh, slip op. at 11-14.)

Where a trial court fails "to properly instruct the jury regarding an element of the

charged crime," the court commits "a constitutional error that deprives the defendant of due

process." Conde v. Henry, 198 F.3d 734, 740 (9th Cir. 1999) (quoting Hennessy v. Goldsmith,

929 F.2d 511, 514 (9th Cir. 1991)). However, harmless error analysis is ordinarily applied to

trial errors, including a jury instruction that actually omits an element of the offense. See Neder

v. United States, 527 U.S. 1, 8, 11 (1999). In determining whether the trial court’s error in

failing to give an instruction on knowledge as an element of Cal. Health and Safety Code section

11370.1 entitles petitioner to habeas relief, this court must ask “whether the error had a

substantial and injurious effect” on the outcome of the trial. Brecht v. Abrahamson, 507 U.S.

619, 637 (1993). Under this standard of review, a habeas court may not grant habeas relief

unless petitioner can establish that, as a result of the state trial court's error, he suffered “actual

prejudice;” i.e., that as a result of the error, the outcome of the trial was rendered fundamentally

unfair. Id.7

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corpus proceeding. See Estelle, 502 U.S. at 67-68 (a federal writ is not available for alleged error

in the interpretation or application of state law); Park, 202 F.3d at 1149 (same). The issue before

this court is whether the erroneous jury instruction violated petitioner’s federal constitutional

rights. 

12

Petitioner cannot make such a showing of prejudice. Here, the jury was instructed

as to the element of knowledge with regard to possession of the weapon under Cal. Penal Code

§ 12022:

It is alleged in Counts 1 and 3 that in the commission or attempted

commission of the crime charged Counts 1 and 3 that the

[petitioner] was personally armed with a firearm. If you find the

[petitioner] guilty of either of the crimes charged in Counts 1 or 3

then you must determine whether the [petitioner] was personally

armed with a firearm at the time of the commission or attempted

commission of the crime.

The term armed with a firearm means knowingly to carry a firearm

or have it available for offensive or defensive use. The word

firearm includes a pistol, revolver, shotgun, or rifle or any other

device designed to be used as a weapon from which is expelled

through a barrel a projectile by the force of any explosion or any

other form of combustion.

(RT 395-96.)

The jury found petitioner guilty of Cal. Penal Code § 12022. A reasonable jury

would not find petitioner had knowledge of the gun as to the Penal Code § 12022 charge, but not

have knowledge of the same gun in the same location as to the Health and Safety Code § 11370.1

charge. Because the jury found petitioner had knowledge of the shotgun with regard to the Penal

Code § 12022 charge, petitioner cannot demonstrate actual prejudice resulting from the failure to

instruct as to the knowledge element on the Health and Safety Code § 11370.1 charge. Here, no

rational jury could have found the missing element unproven with regard to the § 11370.1

charge. Thus, “the error is harmless beyond a reasonable doubt and the conviction stands.” 

Neder v. United States, 527 U.S. 1, 19 (1999). This claim for relief should also be denied.

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 The state court referred to “Deputy Jacquith,” but Deputy Jaquith spelled her last name 8

“Jaquith” for the court reporter during the trial. (Reporter’s Transcript (“RT”) at 163.)

13

C. Insufficient Evidence re July 21, 2001 Charge of Assault

Petitioner’s third claim is that the July 21, 2001 charge of assault with a deadly

weapon was also unsupported by sufficient evidence. 

The last reasoned rejection of this claim is the decision of the California Court of

Appeal for the Third Appellate District on petitioner’s direct appeal. The state court rejected this

claim on the ground that:

“The mens rea [for assault with a deadly weapon] is established

upon proof the defendant willfully committed an act that by its

nature will probably and directly result in injury to another, i.e., a

battery. Although the defendant must intentionally engage in

conduct that will likely produce injurious consequences, the

prosecution need not prove a specific intent to inflict a particular

harm.” (People v. Colantuono (1994) 7 Cal.4th 206, 214.) “The

pivotal question is whether the defendant intended to commit an

act likely to result in such physical force, not whether he or she

intended a specific harm.” (Id. at p. 218.)

“As used in [Penal Code] section 245, subdivision (a)(1), a ‘deadly

weapon’ is ‘any object, instrument, or weapon which is used in

such a manner as to be capable of producing and likely to produce,

death or great bodily injury.’ [Citation.] Some few objections,

such as dirks and blackjacks, have been held to be deadly weapons

as a matter of law; the ordinary use for which they are designed

establishes their character as such. [Citations.] Other objects

while not deadly per se, may be used, under certain circumstances,

in a manner likely to produce death or great bodily injury. In

determining whether an object not inherently deadly or dangerous

is used as such, the trier of fact may consider the nature of the

object, the manner in which it is used, and all other facts relevant

to the issue.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-

1029.) When used as a club or missile, a beer bottle constitutes a

deadly weapon. (People v. Cordero (1949) 92 Cal.App.2d 196,

199.)

Here, [petitioner] had been released from custody only a few weeks

earlier and was awaiting trial on those charges, when he was found

in an office with a large quantity of methamphetamine. When the

police entered the office, he refused to comply with their orders

and resisted arrest. He struggled with Deputy Jacquith , and while 8

she was holding on to him, attempting to handcuff him, he picked

up a 40-ounce beer bottle and threw it over his shoulder, towards her head.

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It was not unreasonable for a jury to infer from this evidence that a

40-ounce beer bottle, thrown over one’s shoulder at a deputy’s

head while struggling with that deputy to resist arrest, is an object

“‘used in such a manner as to be capable of producing and likely to

produce, death or great bodily injury.’” (People v. Aguilar, supra,

16 Cal.4th at pp. 1028-1029.) Nor was it unreasonable for the jury

to conclude from this evidence that “[petitioner] intended to

commit an act likely to result in [the application of] physical

force.” (People v. Colantuono, supra, 7 Cal.4th at p. 218.) 

Nothing more was required.

(People v. Singh, slip op. at 14-16.)

As noted above, sufficiency of the evidence claims on habeas review are governed

by Jackson v. Virginia, 443 U.S. 307, 319 (1979)(relief available if it is found that upon the

record evidence adduced at trial, viewed in the light more favorable to the prosecution, no

rational trier of fact could have found proof of guilt beyond a reasonable doubt.)

Viewing the evidence offered at trial in the light more favorable to the

prosecution, it was not unreasonable for the jury to find petitioner guilty of this charge beyond a

reasonable doubt. Sheriff’s Detective Scott Hyatt (RT 44) testified that petitioner refused orders

to stand up and place his hands behind his back, threw a glass pipe into the corner of the room

and started spreading white powder on to the table and ground. (RT 104-05, 174.) Hyatt

testified that when Deputy Stacy Jaquith attempted to put petitioner in a wristlock, petitioner

“flung” Deputy Jaquith “across a wall.” (RT 106.) Deputy Jaquith testified that petitioner

grabbed a beer bottle off the table and threw it at her head, coming within an inch of hitting her

head. (RT 181.) 

While defense counsel argued that the evidence did not support the prosecution’s

theory that petitioner picked up the bottle and threw it at Deputy Jaquith (RT 487-90), there was

sufficient evidence from which a reasonable jury could find petitioner threw the bottle at Deputy

Jaquith. The testimony of one witness, if believed, is sufficient to prove a fact. See United

States v. Jones, 425 F.2d 1048, 1055 (9th Cir. 1970), quoting Proffit v. United States, 316 F.2d

705 (9th Cir. 1963). Here, the jury apparently believed the testimony of the witnesses that

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petitioner assaulted the officer with a deadly weapon. It was their prerogative to do so. United

States v. Young, 573 F.2d 1137, 1139 (9th Cir. 1978) ("it is the jury's exclusive function to

weigh the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences

from proven facts"). 

The state court’s rejection of this claim for relief was neither contrary to, nor an

unreasonable application of, controlling principles of United States Supreme Court precedent. 

Petitioner’s third claim for relief should also be denied.

D. Failure to Instruct Using CALJIC 12.42

Finally, petitioner contends that the trial court erred by failing to sua sponte

instruct with CALJIC No. 12.42. Petitioner argues that CALJIC No. 12.42 would have required

the jury to determine petitioner “intended to use the beer bottle as a deadly weapon or dangerous

weapon.” (Traverse at 23.) 

This claim was also rejected by the state appellate court in its ruling on

petitioner’s direct appeal. People v. Singh, slip op. at 16-18. The court reasoned as follows:

Here, the jury was instructed with CALJIC No. 9.02 (6th ed. 1996),

that ‘[a] deadly weapon is any object, instrument, or weapon which

is used in such a manner as to be capable of producing, and likely

to produce, death or great bodily injury. Great bodily injury refers

to significant or substantial bodily injury or damage; it does not

refer to trivial or insignificant injury or immediate harm.

By contrast, CALJIC No. 12.42 states, “ A deadly [or dangerous]

weapon is any weapon, instrument or object that is capable of

being used to inflict death or great bodily injury[.] [, and it can be

inferred from the evidence, including the attendant circumstances,

the time, place, destination of the possessor, [the alteration, if any,

of the object from its standard form,] and any other relevant facts,

that the possessor intended on that [or those] occasion[s] to use it

as a weapon should the circumstances require.] [¶] [It is not

necessary that a weapon in fact be used or be visible.]

The instruction is not applicable here. CALJIC No. 12.42 “guides

a jury’s determination of whether an object is a deadly weapon in

cases when the object has not actually been used as a weapon.”

(People v. Seaton (2001) 26 Cal.4th 598, 665.) It concerns the

determination whether an instrument or object in a defendant’s

possession is “capable of being used as a weapon “should the

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circumstances require.” (CALJIC No. 12.42.) Thus, CALJIC No.

12.42 has been deemed relevant where the offense charges the

defendant with possession, not actual use, of a prohibited weapon. 

(E.g., People v. Graham (1969) 71 Cal.2d 303, 327-329 [robbery

while armed with a dangerous or deadly weapon]. . . .

Such an instruction is “essential when the questioned object is an

innocent-appearing utensil capable of use as a dangerous object”

(Use Note to CALJIC 12.42 (6th ed. 1996) p. 86) because “if the

object is not a weapon per se, but an instrument with ordinary

innocent uses, the prosecution must prove that the object was

possessed as a weapon.” (People v. Fannin (2001) 91 Cal.App.4th

1399, 1404.)

In contrast, when the charged offense involves an object that has

been used as a weapon, there is no need to instruct the jury whether

an otherwise innocent object is a weapon. “[T]he use of such an

[innocent seeming] instrument with the intent to resist arrest or

detention necessarily encompasses its use or intended use as a

weapon.” (People v. Pruett (1997) 57 Cal.App.4th 77, 86.) Thus,

once the object has been used as a weapon, there is no need to

define for the jury what constitutes a weapon, although there may

be a need to define what is deadly, which was done here pursuant

to CALJIC No. 9.02. Accordingly, the trial court did not err in

failing to instruct the jury with CALJIC No. 12.42.

People v. Singh, slip op. at 16-18. 

A challenge to jury instructions does not generally state a federal constitutional

claim. See Middleton, 768 F.2d at 1085 (citing Engle, 456 U.S. at 119); Gutierrez v. Griggs, 695

F.2d 1195, 1197 (9th Cir. 1983). In order to warrant federal habeas relief, an error in jury

instructions “cannot be merely ‘undesirable, erroneous, or even “universally condemned,”’ but

must violate some due process right guaranteed by the fourteenth amendment.” Prantil, 843 F.2d

at 317 (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)). To prevail, petitioner must

demonstrate that the erroneous charge “‘so infected the entire trial that the resulting conviction

violates due process.’” Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147). In making its

determination, this court must evaluate the challenged jury instructions “‘in the context of the

overall charge to the jury as a component of the entire trial process.’” Prantil, 843 F.2d at 817

(quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). Where the challenge is to a

refusal or failure to give an instruction, the petitioner’s burden is “especially heavy,” because

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claim. However, “[a]n application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the

State.” 28 U.S.C. § 2254(b)(2).

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“[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement

of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977). See also Villafuerte v. Stewart, 111

F.3d 616, 624 (9th Cir. 1997). 

The decision of the state court rejecting this claim is not contrary to or an

unreasonable application of United States Supreme Court authority and should not be set aside. 

Petitioner has failed to demonstrate that his trial was rendered fundamentally unfair because of

the trial court’s failure to give CALJIC 12.42. Because it was alleged the beer bottle was used as

a weapon, there was no need to sua sponte instruct the jury that a beer bottle could be viewed as

a weapon, and the jury was instructed as to the definition of what is deadly by the use of CALJIC

No. 9.02. After a review of the instructions as a whole, this court concludes that the trial court’s

failure to give instruction CALJIC 12.42 did not render petitioner’s trial fundamentally unfair 

This claim should also be denied.

E. Additional Claims Raised in Traverse

In the traverse, petitioner appears to raise, for the first time, a claim that law

enforcement’s entry into the hotel room violated the Fourth Amendment. A traverse is not the 9

proper pleading to raise additional grounds for relief. See Cacoperdo v. Demosthenes, 37 F.3d

504, 507-08 (9th Cir.1995). In general, claims not raised in the petition are not cognizable on

appeal. See United States v. Allen, 157 F.3d 661, 667 (9th Cir.1998) (citing Cacoperdo, 37 F.3d

at 507). 

However, even assuming, arguendo, the court could reach this claim, petitioner’s

claim is barred by Stone v. Powell, 428 U.S. 465 (1976). In Stone the United States Supreme

Court held that where the State has provided an opportunity for full and fair litigation of a Fourth

Amendment claim, the Constitution does not require that a state prisoner be granted federal

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habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure

was introduced at his trial. Id. at 482. 

Accordingly, IT IS HEREBY ORDERED that plaintiff’s February 6, 2006 request

for judicial notice is granted; and

IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of

habeas corpus be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that

failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: October 24, 2006.

001; sing2120.157

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