(Super. Ct. No. P10CRF0036)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Kenneth Allen Sharonoff was living at a homeless camp in Placerville when he shot to death another resident of the camp, 68-year-old Clark McCabe. A jury convicted defendant of one count of second-degree murder, one count of elder abuse resulting in death, two counts of possession of a firearm by a felon, and one count of possession of ammunition by a felon. The jury also found various enhancement allegations to be true, including the personal discharge of a firearm resulting in death and the personal infliction of great bodily injury. Following a bifurcated hearing, the trial court found that defendant had been convicted of two prior strike offenses within the meaning of the three strikes law (Pen. Code, §§ 667, subd. (b)-(i), 1170.12). The trial court sentenced defendant to an indeterminate term of 70 years to life plus a consecutive determinate term of 10 years in state prison and imposed other orders.
On appeal, defendant contends the trial court prejudicially erred and violated his constitutional rights by (1) admitting into evidence two prior convictions for assault with a deadly weapon for the limited purpose of establishing defendant's intent to kill, and (2) failing to instruct the jury on the theory of imperfect self-defense as a means of mitigating murder to voluntary manslaughter. We disagree and affirm.
In January 2010, defendant lived in a homeless camp behind Prospector's Plaza in Placerville. The makeshift camp was set up in a field of manzanita and other scrub vegetation. Several worn paths led to the various campsites. The "mayor" of the camp was a 68-year-old man named Clark McCabe, who also went by the name "Otto." According to Tommy Aldrich, another camp resident: "Otto was like the senior of the camp. He was everyone's -- he had, you know, like authority like who could go, who could stay, and he was just like the peacekeeper of the camp." Paul Oakes and his mother also lived at the camp; Oakes went by the name "Cody" and was one of defendant's friends. The camp was also home to Jeremiah Rands and his girlfriend Heather Whitney.*fn1
On the evening of January 23, 2010, Tommy was visiting Jeremiah and Heather at their campsite when defendant arrived carrying an old, rusted, single-action black powder revolver. Defendant appeared to be drunk and waved the gun around while "ranting and raving about something." The weapon was cocked and ready to fire. When defendant put his arms around Tommy, resting the gun on his shoulder, Tommy asked defendant to put the gun away. Defendant apologized and complied with the request, placing the gun in his pants.
Later that night, defendant was at his campsite when Cody arrived and asked if he wanted to watch a movie. Defendant declined, explaining that Otto had his crossbow, and that he wanted to get it back so he could sell the weapon. Cody agreed to meet defendant at Otto's camp, but first needed to get some water from his campsite. Both defendant and Cody were wearing head lamps to allow them to navigate the dark trails through the camp. A few minutes later, as Cody approached Otto's campsite after retrieving a water jug, he heard defendant and Otto arguing over the crossbow. Defendant demanded: "I want my crossbow back." Otto responded: "No, you can't have it. You owe me money." By this point, Cody could see defendant pointing a gun at Otto's head. Defendant pulled back the hammer and said: "Oh, yeah?" Otto replied: "You just made the biggest mistake of your life." And as Otto pulled what appeared to be a cell phone out of his pocket, defendant pulled the trigger. He then pulled back the hammer and fired a second shot as Otto fell to the ground.
Each round delivered a fatal wound. The first round struck Otto in the chest, penetrating both lungs and lodging behind his shoulder blade. This wound caused Otto to begin to convulse and slowly collapse. The second round entered Otto's lower back as he doubled over, penetrated the spleen and left lung and lodged beneath the collarbone. Otto died as a result of these injuries.
Defendant then ran up a hill through a nearly impassable trail. Shaken up by what he had seen, Cody slowly walked to defendant's camp to find out what "actually happened." When he arrived a few minutes later, defendant was rustling around in his tent. Jeremiah then showed up and asked if they wanted to hang out at his campsite. Defendant said that "he'd be right over," so Cody and Jeremiah walked to Jeremiah's campsite together. After Cody told Jeremiah about the shooting, they decided to wait for defendant to arrive at the campsite, and then Jeremiah would walk down to Cody's mother's campsite to inform her of the situation. Defendant arrived 10 to 15 minutes later. Jeremiah excused himself to use the restroom and walked to Cody's mother's campsite. Acting on her advice, Jeremiah walked to Otto's camp to make sure this was not a prank. Finding Otto motionless on the ground, Jeremiah ran back to his campsite to make sure Heather was safe. He then took her cell phone, again pretended he needed to use the restroom, and called Cody's mother on her cell phone to tell her Otto was dead.
Deputies from the El Dorado County Sheriff's Department responded to a 911 call reporting the shooting. The camp was cleared early the next morning and its inhabitants detained for questioning. Otto's body was also recovered. Later in the day, Cody assisted the officers in an unsuccessful search for defendant's revolver. Cody resumed the search the following day with four camp residents and eventually found the gun in the manzanita field near a place defendant had previously used ...