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People v. Gloss

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 31, 2012
B229929 (Cal. Ct. App. Jan. 31, 2012)

Opinion

B229929

01-31-2012

THE PEOPLE, Plaintiff and Respondent, v. CLARENCE CHRISTOPHER GLOSS III, Defendant and Appellant.

Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. KA088019)

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.

Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant, Clarence Christopher Gloss III, was convicted by a jury of second degree murder. (Pen. Code, § 187, subd. (a).) The jury found defendant used a firearm within the meaning of section 12022.53, subdivisions (b), (c) and (d). He was sentenced to 40 years to life in state prison. We affirm the judgment.

All further statutory references are to the Penal Code unless otherwise noted.

II. THE EVIDENCE


A. The Prosecution Case

Around midnight on August 6, 2009, David Peralta was sitting on a bench near Gingrich Park in West Covina. Defendant walked past Mr. Peralta. Mr. Peralta did not know defendant. But Mr. Peralta had seen defendant in the neighborhood. Defendant walked out of a cul-de-sac on Stonehaven Place and down a pathway towards the park. Mr. Peralta did not see anyone else walking with defendant. Thirty minutes later, Mr. Peralta heard two men talking calmly but loudly. This was followed by two gunshots. Five minutes later, defendant ran back past Mr. Peralta and down Stonehaven Place. Defendant was alone. Mr. Peralta did not see anything in defendant's hands. Five minutes later, Mr. Peralta started walking towards his house. Mr. Peralta saw someone lying on the walkway in the park. Mr. Peralta also heard two male voices. He became frightened, left, and arrived home at 2 a.m.

Cindy Galvan was walking in the park with her boyfriend when they discovered a body lying on a pathway. They did not see anyone else in the area. Ms. Galvan called the emergency operator. They had been outside her boyfriend's house only briefly. They did not hear any voices or any gunshots.

The victim, Jonathan Rudolph, was pronounced dead at 2:05 a.m. He died from two gunshot wounds, one to the neck and the other to the head. The gunshot wound to the head was "rapidly" fatal. The bullet entered the right side of Mr. Rudolph's forehead, just above his right eyebrow. It was fired from between two and five inches away. Mr. Rudolph also suffered minor blunt force injuries, scrapes and abrasions. A toxicology screen was positive for marijuana. Mr. Rudolph could have ingested the drug anytime between 24 hours and a few minutes prior to his death. An iPod and a plastic film canister containing marijuana buds were found on Mr. Rudolph's person. No partially burnt marijuana cigarettes were found. Mr. Rudolph's right front coin pocket was raised in a rectangular shape consistent with a cellular telephone. However, no telephone was recovered from his person. It appeared Mr. Rudolph's body had been moved six to eight inches downward from where he fell.

Mr. Rudolph was killed by two .25 auto caliber bullets. Both were fired from the same semiautomatic pistol. A box of nine live .25 auto caliber cartridges were recovered from a closet in the master bedroom of the home defendant shared with his parents. No guns were found in the home. Both the cartridge found at the scene of the murder and the cartridges found in defendant's home were stamped ".25 Auto" and "W.I.N.," which stands for Winchester, the ammunition brand.

Derrick Lawrence had bested defendant in a fist fight a few days before Mr. Rudolph was killed. Mr. Lawrence and Mr. Rudolph were playing basketball in Gingrich Park when defendant approached. Defendant's brother and a friend, Carlos King, also approached. Defendant and Mr. Lawrence had been friends until about a year earlier when their relationship soured. Defendant called Mr. Lawrence over. Mr. Rudolph tried to hold Mr. Lawrence back. A fist fight ensued between defendant and Mr. Lawrence. Mr. Lawrence testified, "I got the best of him." Mr. Lawrence also testified Mr. Rudolph had nothing to do with the fight. With respect to the relationship between defendant and Mr. Rudolph, Mr. Lawrence testified, "It was always like a little animosity, but I wasn't too sure if it was like a playful animosity or if it was like something serious."

Marcoantonio Gaellous Flores knew both defendant and Mr. Rudolph, the victim. Defendant and Mr. Flores's son Marcoantonio, also known as "Magic," were best friends. Mr. Flores telephoned defendant. Mr. Flores asked defendant what had happened to Mr. Rudolph. Defendant at first told Mr. Flores that Mr. Lawrence shot Mr. Rudolph over a $20 debt. Defendant said Mr. Rudolph had been shot with a .25 caliber firearm. That Mr. Rudolph's wounds were from .25 caliber bullets was known to law enforcement but was not known to the public at that time.

Defendant later confessed to Mr. Flores. Mr. Flores talked to defendant about the shooting of Mr. Rudolph. Mr. Flores described their conversation: "[H]e goes, hey Mr. Flores, is it to be a man to tell you - - say the truth and stand up for it -- [¶] . . . And he told me, well, Mr. Flores, I did it. [¶] And I go, you did what? [¶] He goes, I shot Jonathan. [¶] . . . I shot Jonathan in the head." Mr. Flores described defendant's explanation for the shooting: "Because he was setting me up to get jumped. [¶] And I go . . . that's something . . . kind of dumb. [¶] And then he told me, well, he didn't want to fight me." According to Mr. Flores, defendant described the challenge to fight: "He told me that . . . he went up to him and he wanted to fight him no matter what. . . . That Jonathan walked away from him." Mr. Flores described defendant's description of what happened next, "He just said he went and got the gun and shot him." Defendant asked Mr. Flores to retrieve the gun from defendant's backyard and get rid of it. Defendant subsequently said he had gotten rid of the gun. Defendant said the murder weapon was given to a friend in La Puente. Mr. Flores contacted Detective Huston Clements and related defendant's confession. Mr. Flores received witness protection services after he reported having been threatened.

Carlos King knew defendant, Mr. Lawrence, and the victim, Mr. Rudolph. They had all gone to school together. Mr. King was with defendant on the evening Mr. Rudolph was shot and killed. They were in defendant's car. Defendant got out of the car at a spot about 10 minutes by foot from Gingrich Park.

Defendant was gone for about an hour. Mr. King drove defendant's car around the neighborhood. Mr. King picked up defendant, who appeared "kind of nervous," where they had parted. But they did not talk about defendant's meeting with Mr. Rudolph. Defendant did not say anything about what had happened. Mr. King did not ask whether anything had happened. Mr. King did not see defendant with a gun at any time that night. Defendant later confessed to Mr. King that he had shot Mr. Rudolph. Mr. King did not know why defendant had done it. On cross-examination, Mr. King described defendant and Mr. Rudolph as friends saying, "They hung out" together.

Two detectives interviewed defendant on August 14, 2009, at his place of employment. The interview was recorded. During the interview, defendant's story changed repeatedly. At first defendant denied he had been in the park the night of the killing. Then defendant said he had been in the park. Defendant had planned to meet Mr. Rudolph there to smoke marijuana. Defendant entered the park and called Mr. Rudolph's name. But Mr. Rudolph was already dead when defendant arrived. Defendant saw somebody lying on the path in the park. Defendant saw Mr. Peralta sitting on the bench. Defendant was unsure the person lying on the walkway was Mr. Rudolph. But defendant had a feeling the dead person was Mr. Rudolph. Defendant said he ran back to his house.

In another version of the events, defendant claimed to have met Mr. Rudolph in the park where they smoked marijuana. As defendant was leaving, he heard two gunshots and he ran. He looked back after the first shot, saw two people, and then there was a second shot. He thought the shots were aimed at him, so he ran.

Finally, defendant told the following story. He heard two people talking. He saw someone in a dark hooded sweatshirt with a gun. The individual in the hooded sweatshirt called Mr. Rudolph over. The individual's voice sounded Black. Mr. Rudolph walked to the person in the hooded sweatshirt. Defendant took off, heard gunshots, and he looked back. Defendant saw two "guys" standing over Mr. Rudolph.

On August 29, 2009, both defendant and Mr. King were arrested for Mr. Rudolph's murder. The two detectives interviewed defendant in custody following his arrest. The interview was recorded. Defendant repeated the story about the man in the hooded sweatshirt. Defendant denied seeing or speaking to Mr. King at all that night. Defendant repeatedly stated Mr. King had nothing to do with the murder. Defendant said he left his car at home and walked to the park.

On August 30, 2009, the day following defendant's arrest, defendant made a recorded telephone call to a friend, Joseph Philip Johnson. Mr. Johnson had been present at the time of defendant's arrest. The jury listened to the recording. Defendant and Mr. Johnson agreed that someone was talking to the authorities about the shooting. Defendant said, "I think [Mr. Flores] snitched on me." Defendant thought Mr. Flores was a friend of a retired law enforcement officer.

Also on August 30, 2009, Detective Huston Clements interviewed Mr. King in custody. The recorded interview was played for the jury. Initially, Mr. King denied being with defendant on the night Mr. Rudolph was shot. Eventually Mr. King changed his story. Mr. King told Detective Clements, "[Defendant] told me that he did it." Mr. King explained to Detective Clements what defendant said about the reason Mr. Rudolph had been shot: "[Defendant] said . . . when he first met [Mr. Rudolph], getting out of high school, when he first me[t] him, how he met him, he, like—he met him 'cause he, like, [Mr. Rudolph] was talking shit, or something like that. And then, eventually, they became cool, you see? And then I guess . . . he just always had a . . . he always hated him, I guess. I never knew that, too."

According to Mr. King: "[I]t did look kinda weird . . . . [Defendant] said, 'I'm going to smoke with John,' and then he said, 'Oh, you could just drive my car around, just go have fun' . . . . [¶] And then he calls me up, like, 'Meet me in this spot,' and then he just looks all nervous and shit, and that's it." Mr. King received a cellular telephone call from defendant who said: "Where you at man. Come pick me up." Mr. King said: "Yeah . . . actually, he r[a]n. Like, he came—when he got in the car, man, like, he's just . . . I could tell he was nervous—nervous about something, and I kept asking him, 'What's wrong? What's wrong?' [¶] And he didn't tell me right away. He told me, like, two days after that . . . two, three days after the fact." Mr. King was dismayed by what defendant had done. Mr. King told Detective Clements: "Look, man, I just don't want to get involved in this shit, man. . . . [A]ll I know is he—he was, man, he just— that's cold. He's supposed to go smoke weed, and then he just—" Defendant had expressed a desire to "get" Mr. Rudolph. Mr. King told defendant, "[Y]ou can't do that." Three days after his arrest, Mr. King was released.

B. Defense Evidence

Defendant's mother, Linda Kee-Gloss, and maternal grandfather, David Kee, both recalled that Mr. Flores had come to their house between two and three years prior to the trial. Mr. Flores asked to speak to defendant. Mr. Flores's son "Magic" had been a frequent visitor to the house. Ms. Kee-Gloss testified Mr. Flores wanted defendant to give false alibi testimony on Magic's behalf. Ms. Kee-Gloss also testified that on the evening of the murder, defendant came home from work around 10:30 or 10:45 p.m., walked somewhere, returned about 11:10 p.m. and stayed in for the rest of the night.

III. DISCUSSION


A. Accomplice Instructions

Defendant contends the trial court had a sua sponte duty to instruct the jury to determine whether Mr. King was an accomplice. Defendant argues there was circumstantial evidence Mr. King knew of the plan to kill Mr. Rudolph and acted as the getaway driver. Or defendant argues there was circumstantial evidence they jointly engaged in a drug transaction and murder was the probable consequence of that act. Defendant further asserts the failure to instruct the jury on accomplice testimony resulted in a denial of his due process and fair trial rights under the United States Constitution. We conclude there was no error and no violation of defendant's constitutional due process or fair trial rights. Even if there was error, it was harmless.

Section 1111 defines an accomplice, "An accomplice is . . . one who is liable to prosecution for the identical offense charged against the defendant on trial . . . ." Our Supreme Court has explained, "An accomplice must have '"guilty knowledge and intent with regard to the commission of the crime."' (People v. Hoover (1974) 12 Cal.3d 875, 879.)" (People v. Lewis (2001) 26 Cal.4th 334, 369; accord, People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 302.) An accomplice includes all principals, including aiders and abettors. (§ 31; People v. Avila (2006) 38 Cal.4th 491, 564; People v. Stankewitz (1990) 51 Cal.3d 72, 90.) With respect to an aider and abettor, our Supreme Court has explained: "An aider and abettor is one who acts with both knowledge of the perpetrator's criminal purpose and the intent of encouraging or facilitating commission of the offense. . . . (People v. Hayes (1999) 21 Cal.4th 1211, 1271.)" (People v. Avila, supra, 38 Cal.4th at p. 564; People v. Stankewitz, supra, 51 Cal.3d at pp. 90-91.) An accomplice does not include a mere accessory. (People v. Fauber (1992) 2 Cal.4th 792, 833-834; see People v. Snyder (2003) 112 Cal.App.4th 1200, 1217.) Section 32 defines an accessory as, "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof . . . ." (See People v. Horton (1995) 11 Cal.4th 1068, 1113-1114; People v. Snyder, supra, 112 Cal.App.4th at p. 1217.)

With respect to accomplice testimony jury instruction, our Supreme Court has explained: "If there is evidence from which the jury could find that a witness is an accomplice to the crime charged, the court must instruct the jury on accomplice testimony. (People v. Fauber, supra, 2 Cal.4th at p. 834.) But if the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony. (People v. Hoover, supra, 12 Cal.3d at p. 880.)" (People v. Horton, supra, 11 Cal.4th at p. 1114; accord, People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 302.) At trial, it is the defendant's burden to establish by a preponderance of the evidence that a person is an accomplice. (People v. Frye (1998) 18 Cal.4th 894, 967-969, overruled on a different point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Fauber, supra, 2 Cal.4th at p. 834.) Our Supreme Court has emphasized that the evidence must be substantial and not speculative, "Substantial evidence is 'evidence sufficient to "deserve consideration by the jury," not "whenever any evidence is presented, no matter how weak."' (People v. Williams (1992) 4 Cal.4th 354, 361.)" (People v. Lewis, supra, 26 Cal.4th at p. 369.)

There was no substantial evidence Mr. King was an accomplice. There was no evidence Mr. King was at the shooting scene. Mr. Peralta saw only one person enter and later leave the park. That person was defendant, not Mr. King. Mr. Peralta heard only two men talking loudly in the park prior to the shooting. Mr. Peralta did not hear a third voice. It is a reasonable inference the two men were the victim, Mr. Rudolph, and defendant. Mr. King testified he drove defendant to the vicinity of the park. According to Mr. King, defendant got out alone. Defendant walked into the park and met Mr. Rudolph. According to defendant, they were going to smoke marijuana. There was no substantial evidence Mr. King had guilty knowledge and intent. Mr. King's testimony was consistent with that of Mr. Peralta. It was also consistent with what defendant told Detective Clements. Defendant never placed Mr. King in the park when Mr. Rudolph was present. In fact, defendant denied ever seeing Mr. King that evening. Defendant said he had walked alone from his house to the park and back. Mr. King repeatedly denied knowing what defendant planned to do. Mr. King was unaware defendant was carrying a weapon. Mr. King did not learn defendant had shot Mr. Rudolph until two or three days later. Mr. King did not understand why defendant was upset with Mr. Rudolph. There was no evidence Mr. King had any motive to murder Mr. Rudolph. Prior to the murder, Mr. King had told defendant to leave Mr. Rudolph alone. Mr. King was arrested for the murder but released two days later. Detective Clements concluded there was insufficient evidence to charge Mr. King. Detective Clements could not even charge Mr. King with being an accessory. There was no evidence Mr. King knew defendant planned to shoot Mr. Rudolph prior to the murder. Further, there was no evidence defendant told Mr. King about the murder upon reentering the car. Detective Clements testified, "[Mr. King] did not know until two days later." This was insufficient evidence for the jury to conclude Mr. King was an accomplice. (See, e.g., People v. Lewis, supra, 26 Cal.4th at pp. 369-370; People v. Horton, supra, 11 Cal.4th at pp. 1115-1116; People v. Rodriguez (1986) 42 Cal.3d 730, 760-761; People v. Adams (1980) 101 Cal.App.3d 791, 798.)

Defendant's suggestion Mr. King jointly participated in a drug transaction and murder was the probable consequence of that act is pure speculation. There was no evidence Mr. King was associated with defendant in selling drugs. There was no evidence Mr. King went into the park with defendant. There was no evidence of a drug sale. There was no evidence Mr. King knew of any alleged drug transaction or had any stake in it. When cross-examined, Mr. King denied meeting defendant and Mr. Rudolph at the park that night to buy some marijuana. Even if there had been evidence of a possible drug transaction between defendant and Mr. Rudolph, such activity between friends, without more, is not likely to end in murder. (See People v. Hinton (2006) 37 Cal.4th 839, 880; People v. Ward (2005) 36 Cal.4th 186, 213; People v. Garceau (1993) 6 Cal.4th 140, 183-184, disapproved on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)

Even if we were to assume the jury could have found Mr. King was an accomplice, any error in failing to submit that issue to the jury was harmless. Our Supreme Court has held: "A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is 'sufficient corroborating evidence in the record.' (People v. Lewis[, supra,] 26 Cal.4th [at p.] 370.) To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony. (People v. Perry (1972) 7 Cal.3d 756, 769.) Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. (Ibid.; accord, People v. Lewis, supra, 26 Cal.4th at p. 370.) '"[T]he corroborative evidence may be slight and entitled to little consideration when standing alone." [Citation.]' (People v. Perry, supra, 7 Cal.3d at p. 769.)" (People v. Avila, supra, 38 Cal.4th at pp. 562-563; accord, People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 303; People v. Brown (2003) 31 Cal.4th 518, 556.)

Mr. King's testimony was sufficiently corroborated by independent evidence. Mr. Peralta saw only one person enter and later leave the park. That person was defendant. Mr. Peralta heard only two voices prior to the shooting—defendant and the victim, Mr. Rudolph—not three. Defendant told Mr. Flores the murder weapon was a .25 caliber firearm at a time when that information was unknown to the public. Defendant admitted shooting Mr. Rudolph in the head, according to Mr. Flores. Also, defendant admitted shooting Mr. Rudolph to Mr. King. Ammunition matching that which killed Mr. Rudolph was found in defendant's home. After the shooting, defendant spoke with Mr. Johnson. In a surreptitiously recorded conversation, defendant said that Mr. Flores was a "snitch." Mr. Flores was later threatened.

Further, the jury was instructed with CALJIC Nos. 2.20 (believability of witness), 2.21.1 (discrepancies in testimony) and 2.21.2 (witness willfully false). These instructions sufficed to inform the jury to view Mr. King's testimony with care. (See People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 304; People v. Hinton, supra, 37 Cal.4th at pp. 880-881.) There was no error. Even if there was error, it was harmless. Therefore, we reject defendant's federal constitutional due process and fair trial claims. (People v. Lewis, supra, 26 Cal.4th at p. 371; see People v. Robinson (2005) 37 Cal.4th 592, 643.)

B. Ineffective Assistance Of Counsel

Defendant argues Mr. King's credibility was a central issue at trial. Defendant argues defense counsel, W. Robert Seabold, was therefore prejudicially ineffective in: failing to impeach Mr. King with prior convictions; failing to request an instruction on Mr. King's testimony as an in-custody informant (CALJIC No. 3.20); failing to request accomplice instructions; and failing to object to the prosecutor's argument regarding Mr. King's credibility. We find no prejudicial ineffective assistance of counsel.

Our Supreme Court has held, "[T]o establish ineffective assistance of counsel, a defendant must demonstrate his attorney's performance fell below an objective standard of reasonableness, and there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland [v. Washington (1984)] 466 U.S. [668,] 688, 694.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid.)" (People v. Dickey (2005) 35 Cal.4th 884, 913; accord, People v. Gray (2005) 37 Cal.4th 168, 206-207.) There is a rebuttable presumption, which it is defendant's burden to overcome, that counsel's performance fell within the wide range of reasonable professional assistance and the challenged actions were a matter of sound trial strategy. (Strickland v. Washington, supra, 466 U.S. at pp. 689-690; People v. Prieto (2003) 30 Cal.4th 226, 261-262; People v. Lewis (1990) 50 Cal.3d 262, 288.) Our Supreme Court has repeatedly explained: "'If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Otherwise, a claim is more appropriately raised in a petition for writ of habeas corpus.' (People v. Carter (2003) 30 Cal.4th 1166, 1211.)" (People v. Gray, supra, 37 Cal.4th at p. 207.)

Defendant has not shown Mr. Seabold's performance was deficient. First, Mr. King was not an in-custody informant. (People v. Bivert (2011) 52 Cal.4th 96, 118-121 [no error in refusing to instruct with CALJIC No. 3.20 where three prisoners were percipient witnesses to defendant's murder of victim]; CALJIC No. 3.20 ["'In-custody informant' means a person, other than a codefendant, percipient witness, accomplice, or coconspirator whose testimony is based upon statements made by a defendant while both the defendant and the informant are held within a correctional institution"]; § 1127a [same].) It would have been futile to request instruction with CALJIC No. 3.20. (People v. Bivert, supra, 52 Cal.4th at pp. 118-121; see People v. Moon (2005) 37 Cal.4th 1, 30.) Second, as discussed above, there was no substantial evidence supporting an accomplice instruction. Third, Mr. Seabold had no ground for objecting to the prosecutor's argument that Mr. King was telling the truth. There was no evidence implicating Mr. King in the murder. Fourth, with respect to impeachment with Mr. King's prior convictions, defendant has not shown and the record on appeal does not demonstrate that there could be no satisfactory explanation for Mr. Seabold's conduct. (People v. Huggins (2006) 38 Cal.4th 175, 206; People v. Anderson (2001) 25 Cal.4th 543, 569.)

Moreover, defendant has not established, as a demonstrable reality, that there is a reasonable probability of a different result. (Strickland v. Washington, supra, 466 U.S. at p. 697; People v. Lawley (2002) 27 Cal.4th 102, 136; People v. Horton, supra, 11 Cal.4th at p. 1122.) Apart from Mr. King's testimony, there was abundant evidence defendant was guilty of the murder. Several days prior to the murder, defendant had lost a fist fight to Mr. Rudolph's friend, Mr. Lawrence. Mr. Rudolph was present at the time. According to Mr. Lawrence, there was animosity between defendant and Mr. Rudolph. During the time frame of the murder, Mr. Peralta: saw defendant enter the park; heard two men talking loudly; heard two gunshots; and then saw defendant leave the park. Defendant told Mr. Flores the victim had been shot with a .25 caliber firearm, a fact unknown to the public. Defendant later admitted shooting Mr. Rudolph in the head to Mr. Flores. Mr. Rudolph suffered two .25 caliber gunshot wounds. He was shot above his right eyebrow from between two and five inches away. Officers found ammunition matching that which killed Mr. Rudolph in defendant's home. Defendant told Mr. Johnson that Mr. Flores had cooperated with the authorities. In speaking with detectives, defendant repeatedly changed his story about what had happened the night of the shooting. Defendant admitted to two detectives being present in the park with Mr. Rudolph at the time of the shooting. Defendant said they had smoked marijuana together. Mr. Rudolph had marijuana in his system when he died. It was not reasonably probable the verdict would have been more favorable to defendant had Mr. Seabold acted differently.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

KRIEGLER, J.


Summaries of

People v. Gloss

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 31, 2012
B229929 (Cal. Ct. App. Jan. 31, 2012)
Case details for

People v. Gloss

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CLARENCE CHRISTOPHER GLOSS III…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date published: Jan 31, 2012

Citations

B229929 (Cal. Ct. App. Jan. 31, 2012)