United States District Court, E.D. California
KENNETH A. SHARONOFF, Petitioner,
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a California state prisoner proceeding pro se with an
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The action proceeds on the petition filed on
April 15, 2013,  ECF No. 1, which challenges
petitioner's 2010 conviction for second degree murder and
related offenses. Respondent has answered the petition. ECF
No. 11. Petitioner did not file a traverse. For the reasons
that follow, the undersigned recommends that the petition be
denied on the merits without an evidentiary hearing. The
court will also deny petitioner's motions for an
evidentiary hearing. ECF Nos. 82 & 83.
Trial Court Proceedings
following statement of the case is taken from the unpublished
opinion of the California Court of Appeal on direct
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
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
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
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
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 to stash drugs. Leaving the gun in place,
Cody called the sheriff's department and deputies came
out to retrieve the weapon.
Defendant's campsite was searched pursuant to a search
warrant. Deputies recovered several lead balls, five of which
were covered with black powder, some .38 caliber cartridges,
a spent shotgun shell casing, and a homemade zip gun.
People v. Sharonoff, No. C066292, 2012 Cal.App.
Unpub. LEXIS 1453, 2012 WL 637076, at * 1-2 (Cal.Ct.App. Feb.
timely appealed and the California Court of Appeal affirmed
the judgment of conviction on February 27, 2012. Id.
at *2, 2012 WL 637076 at *1. The California Supreme Court
denied review on May 9, 2012. Lodged Doc. 8.
State Habeas Proceedings
did not file any state habeas corpus petition challenging his
convictions until after he had filed the instant § 2254
petition in federal court. His first state habeas corpus
petition was filed in the El Dorado Superior Court on
February 24, 2014 and denied on April 3, 2014. See
ECF No. 24-1 at 95-100. Petitioner filed a separate state
habeas petition in the California Supreme Court on May 6,
2014, which was denied on June 25, 2014. See ECF No.
33 at 2-11 (state habeas petition); ECF No. 31 at 2 (postcard
denial issued by the California Supreme Court).
Federal Habeas Proceedings
instant federal petition was constructively filed on April
15, 2013. ECF No. 1. Respondent answered on June 7,
2013. ECF No. 11. Petitioner did not file a traverse.
January 27, 2014, petitioner filed a “motion to quit
claim.” ECF No. 13. This court denied petitioner's
motion without prejudice to refiling either a motion for
voluntary dismissal or a motion for stay and abeyance. ECF
No. 15. In response, petitioner filed a motion to stay, ECF
No. 19, which he renewed one month later, ECF No. 22.
Petitioner also filed two amended § 2254 petitions, ECF
Nos. 21 and 24.
3, 2014, the undersigned issued findings and recommendations
on petitioner's motions for a stay and his amended §
2254 petitions. In light of the objections filed by
petitioner, the court vacated the findings and
recommendations on July 17, 2014 and ordered petitioner to
file a copy of the habeas petition that he had filed in the
California Supreme Court. ECF No. 32. Petitioner complied
with the court's order on July 28, 2014.
September 3, 2014, the undersigned issued findings and
recommendations denying petitioner's motions for a stay
and directing petitioner to file either a notice electing to
delete the unexhausted claims from his original petition and
to proceed on the merits of his remaining exhausted claims,
or a notice of voluntary dismissal of the case without
prejudice. ECF No. 36 at 11. In the same order, the
court recommended that petitioner be denied leave to amend
and that his amended petitions, ECF Nos. 21 and 24, be
stricken from the docket. Id. Petitioner filed
objections and supplemental objections to the findings and
recommendations. ECF Nos. 38, 39.
September 22, 2014, petitioner filed a motion to amend his
§2254 petition. ECF No. 37. Respondent did not oppose
the motion. Petitioner then filed a motion for an evidentiary
hearing and request for release, ECF No. 41, and a motion for
discovery, ECF No. 42. Respondent opposed both motions, ECF
No. 44, and petitioner replied, ECF No. 47.
October 31, 2014, the district judge adopted the September 3,
2014 findings and recommendations in full. ECF No. 43. In
response, petitioner filed a letter to the court, apparently
requesting reconsideration of the October 31, 2014 order.
See ECF No. 45 at 8. Approximately one week later,
the court received petitioner's timely notice to amend
his mixed petition to delete the unexhausted claims from his
original petition. See ECF No. 46. In his notice,
petitioner also appeared to request that the court
“reattach” his “now fully exhausted
claims.” See ECF No. 46 at 1.
17, 2015, the undersigned issued an order and findings and
recommendations recommending that petitioner's request
for release and motion to amend be denied. ECF No. 52 at 11.
The court also denied petitioner's motion for an
evidentiary hearing, his request to “reattach”
claims, and his motion for discovery. Id. In
addition, the court acknowledged petitioner's notice
electing to delete his unexhausted claims from his original
petition, ECF No. 46, and clarified that as a result of this
election, the original petition, ECF No. 1, consists of only
two claims: petitioner's challenge to the trial
court's admission of prior bad act evidence from 1986 and
1994 and the challenge to the trial court's failure to
instruct on imperfect self-defense. See ECF No. 52
at 4. Accordingly, these are the only two claims presently
before the court.
30, 2015, petitioner filed objections to the July 17, 2015
order and findings and recommendations. ECF No. 55. On August
26, 2015, petitioner filed a motion to vacate the July 17,
2015 order and findings and recommendations, ECF No. 57,
which the court construed as a motion for reconsideration.
Upon reconsideration, the undersigned affirmed the July 17,
2015 order and findings and recommendations. ECF No. 58.
September 16, 2015, petitioner filed a notice of
interlocutory appeal of the July 17, 2015 order and findings
and recommendations. ECF No. 60.
September 22, 2015, the district judge adopted the July 17,
2015 findings and recommendations in full and denied
petitioner's request for release and motion to amend his
federal habeas petition. ECF No. 63.
October 26, 2015, petitioner filed a notice of interlocutory
appeal of the September 22, 2015 order adopting the July 17,