People v. Smutz CA2/4

Filed 2/24/22 P. v. Smutz CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B309624
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA028070)
v.
GABRIEL ANTHONY SMUTZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa Mangay Chung, Judge. Reversed
and remanded with directions.
Mark R. Feeser, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Daniel C. Chang and Nicholas
J. Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________________________________
INTRODUCTION
Gabriel Anthony Smutz appeals from the trial court’s
denial of his petition to vacate his murder conviction under
Penal Code section 1170.95 (Section 1170.95). Smutz and a
codefendant were convicted of the murder of Brandi
Olivares, whom Smutz’s codefendant admittedly shot with a
shotgun. Both Smutz and his codefendant denied that
Smutz was involved in Olivares’s death. However, according
to the testimony of a detective who interviewed reluctant
witness Yolanda Mezey before trial, Mezey had reported
that: (1) Smutz had admitted to Mezey that on the day of
Olivares’s death, he and other men, including his
codefendant, had raped Olivares and then forcibly
transported her to the location where her body was found;
and (2) within hours of Olivares’s death, Smutz had arrived
at Mezey’s home with a shotgun, which he directed her to get
rid of. The jury was instructed that it could convict Smutz
under a felony murder theory, based on his involvement in
Olivares’s “rape and/or kidnapping.” The jury convicted
Smutz of Olivares’s murder, and we affirmed. (People v.
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Ward (December 1, 2006, B179883) Cal.App.Unpub. LEXIS
10906 (Ward).)
After the enactment of Senate Bill No. 1437 (2017-2018
Reg. Sess.) (SB 1437), which narrowed the felony murder
rule by requiring findings that the defendant have been at
least a major participant in the underlying felony and have
acted with reckless indifference to human life, Smutz filed a
petition to vacate his murder conviction under Section
1170.95. The trial court issued an order to show cause, held
an evidentiary hearing, and denied the petition. Without
independently evaluating the credibility of Mezey or any
other witness, the court concluded there was substantial
evidence to support a finding beyond a reasonable doubt that
Smutz was guilty under the felony murder rule as narrowed
by SB 1437.
On appeal, the parties agree the court erred in
applying a substantial evidence standard. They dispute
which, if any, harmless-error standard applies, and whether
the applicable standard requires reversal. We agree with
the parties that the court erred in applying a substantial
evidence standard. We need not address the parties’ dispute
regarding the harmless-error standard, as we conclude the
error requires reversal even under the standard advanced by
the Attorney General, viz., the reasonable-probability
standard set forth in People v. Watson (1956) 46 Cal.2d 818(Watson). Accordingly, we reverse the order denying Smutz’s
petition and remand for a new evidentiary hearing.
3
BACKGROUND
A. Underlying Judgment
Smutz and codefendant Scott Miguel Ward were each
charged with one count of murder in violation of Penal Code
section 187, subdivision (a), with associated gang and
1
firearm allegations. (Ward, supra, Cal.App.Unpub. LEXIS
10906, at *1-*2.)
1. Prosecution Case
In November 2003, Brandi Olivares died from wounds
inflicted by shotgun pellets. (Ward, supra, Cal.App.Unpub.
LEXIS 10906, at *3.) Her body was found outside a
residence in a remote area off Barrel Springs Road in
Palmdale, in circumstances suggesting that before she was
shot, she had climbed over the residence’s fence and
attempted to enter its garage through a dog door. (Id. at *3-
*4, *29.) Smutz’s DNA, as well as that of another man, was
found on the exterior of Olivares’s genitals. (Id. at *64, *73.)
The prosecution called Yolanda Mezey (an
acquaintance of Smutz), who testified reluctantly, expressing
fear that she would be labeled a snitch and that she or her
family would be killed.2 (Ward, supra, Cal.App.Unpub.
1
We grant the Attorney General’s request that we take
judicial notice of the record on direct appeal.
2
Ward admitted he had disseminated Mezey’s witness
information, including her address, to fellow members of the
22nd Street Gang. (Ward, supra, Cal.App.Unpub. LEXIS 10906,
(Fn. is continued on the next page.)
4
LEXIS 10906, at *8, fn. 5.) In part for the purpose of
impeaching Mezey with prior inconsistent statements, Los
Angeles County Sheriff’s Department Detective Todd
Anderson was allowed to testify to statements Mezey made
to him during two pretrial interviews. (Id. at *4, *54.)
Detective Anderson testified that during her first interview,
Mezey told him that on the day after Olivares’s death, Smutz
phoned Mezey and told her Olivares was dead. (Ward,
supra, Cal.App.Unpub. LEXIS 10906, at *4.) Smutz further
told Mezey that he and other men had had sex with Olivares
during a party at another woman’s apartment, the other
woman had ejected them from the apartment after she
caught them having sex, and Olivares had said she had been
raped. (Ibid.) Smutz was very upset about what had
happened, and told Mezey that Olivares was his girlfriend,
and that he could have prevented her death, but did not.
(Ibid.)
Detective Anderson testified that during Mezey’s
second interview, conducted in jail, Mezey told him that
Smutz had told her the following: During the party at the
other woman’s apartment, Smutz, Ward, Mezey’s relative
“Nano,” and an accomplice gave Olivares Klonopin (a pain
medication with a sedative effect). (Ward, supra,
Cal.App.Unpub. LEXIS 10906, at *4-*6 & fn. 2, *49, fn. 22.)
Smutz and the other men raped Olivares while she was too
at *8, fn. 5, *38, fn. 16.) Smutz also belonged to the gang. (Id. at
*38, fn. 16.)
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intoxicated to consent to sex. (Id. at *6.) Eventually, the
party’s host entered the room and started hitting Olivares.
(Ibid.) Olivares seemed to realize what was happening, and
either ran out of the apartment or was ejected by the host.
(Ibid.) Pursued by Smutz, Ward, and Nano, Olivares ran to
an adjacent parking lot, screaming that she had been raped.
(Ibid.) Smutz, Ward, and Nano placed Olivares in the back
seat of Nano’s car, where Smutz joined her, while Nano and
Ward entered the front seats. (Ibid.) Nano drove toward
Barrel Springs Road (where Olivares’s body was later found).
(Ibid.) There, Olivares jumped out of the car. (Ibid.)
Mezey also told Detective Anderson that within hours
of Olivares’s death, Smutz, Ward, and Nano arrived by car at
Mezey’s home. (Ward, supra, Cal.App.Unpub. LEXIS 10906,
at *4-*5.) Smutz produced a shotgun and shells, which he
directed Mezey to get rid of. (Ibid.) She placed the items in
her storage locker. (Id. at *4, *5, fn. 3.) The day after
Mezey’s second interview, Detective Anderson searched her
storage locker and found a shotgun and shells. (Id. at *5, fn.
3.)
2. Defense Case
Smutz testified that during the party preceding
Olivares’s death, he had consensual sex with her (inviting
Ward to participate, which Ward did only briefly), the
party’s host attacked her, and she left the apartment
without him. (Ward, supra, Cal.App.Unpub. LEXIS 10906,
at *7-*8, *64.) Smutz denied raping Olivares, kidnapping
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her, or having any involvement in her death. (Id. at *8.) He
further denied making the alleged admissions to Mezey
described by Detective Anderson. (Ibid.)
Ward admitted he shot Olivares, but denied raping or
kidnapping her. (Ward, supra, Cal.App.Unpub. LEXIS
10906, at *6-*7.) He testified Olivares asked him for a ride
home and directed him to Barrel Springs Road, where she
taunted and hit him, provoking him to fire at her twice. (Id.
at *7, *45, fn. 21.) He then drove away and rid himself of the
shotgun. (Id. at *45, fn. 21.) Smutz was not present. (Id. at
*7.)
3. Judgment and Appeal
With respect to the charge against Smutz, the jury was
instructed on both a direct aiding and abetting theory, and a
felony murder theory based on his involvement in Olivares’s
“rape and/or kidnapping.” (Ward, supra, Cal.App.Unpub.
LEXIS 10906, at *62.) Smutz and Ward were found guilty as
charged, and the gang and firearm allegations were found
true. (Id. at *1-*2.) Smutz was sentenced to imprisonment
for 25 years to life, plus a 25-year firearm enhancement and
a gang enhancement. (Id. at *3.) We affirmed the judgment,
as modified to vacate the gang enhancement. (Id. at *35, fn.
15, *76-*77.) We held, inter alia, there was substantial
evidence of Smutz’s murder liability under both the direct
aiding and abetting theory and the felony murder theory.
(Id. at *62-*66, *71-*76.)
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B. The Instant Petition
In February 2019, Smutz filed a petition to vacate his
murder conviction under Section 1170.95, alleging that he
had been convicted under the felony murder rule, and that
he was not guilty under that rule as narrowed by SB 1437
(or under any other still-valid theory).3 At Smutz’s request,
the trial court appointed counsel for him. The prosecution
opposed the petition, arguing Smutz was ineligible for relief
because he could still be convicted of murder, under either a
felony murder theory or a direct aiding and abetting theory.
The court issued an order to show cause.
On November 23, 2020, the court held an evidentiary
hearing.4 Smutz’s counsel urged the court to credit Smutz’s
testimony rather than his alleged admissions. The
prosecutor argued that the jury had credited Smutz’s
admissions, and that the court had no basis to reevaluate the
3
SB 1437 narrowed the felony murder rule by amending
Penal Code section 189, subdivision (e) to provide that a
defendant is not guilty of felony murder unless the defendant:
(1) was the actual killer; (2) acted with the intent to kill as an
aider and abettor; or (3) was a major participant in the
underlying felony and acted with reckless indifference to human
life. (See Pen. Code, § 189, subd. (e); Stats. 2018, ch. 1015, § 3.)
4
In advance of the evidentiary hearing, Smutz submitted a
declaration in which, consistent with his trial testimony, he
denied any involvement in Olivares’s death, and further denied
having admitted such involvement to Mezey. Smutz also
submitted documents concerning his education while
incarcerated and his relationships with his fiancée and daughter.
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evidence. Relatedly, the prosecutor argued that the court
was required to apply a standard akin to the substantial
evidence standard of appellate review, as held in People v.
Duke (2020) 55 Cal.App.5th 113, 272 (Duke), review granted
Jan. 13, 2021, and cause transferred Nov. 23, 2021, S265309.
Under this standard, the prosecutor argued, Smutz was
ineligible for relief because there was substantial evidence of
his guilt, under either a felony murder theory or a direct
aiding and abetting theory. Smutz’s counsel made no
rebuttal, and did not dispute that the court should apply a
substantial evidence standard in accordance with Duke.
The court denied the petition. The court noted that it
had presided over the trial, and that its ruling was based on
the trial testimony and “the applicable standards,” adding, “I
know you did raise the Duke standard.” The court observed
that although various credibility challenges had been raised
at trial with respect to Mezey, who was the prosecution’s
“main” witness, the “[t]he jury had a full opportunity to
evaluate” Mezey’s credibility. The court further observed
that according to Smutz’s alleged admissions to Mezey,
Smutz’s involvement in Olivares’s kidnapping was
“somewhat” significant, in light of factors articulated in
People v. Banks (2015) 61 Cal.4th 788 and People v. Clark
(2016) 63 Cal.4th 522. The court concluded, “[T]here is
substantial evidence to support [a finding] beyond a
reasonable doubt that he was a major participant [in the
underlying felony], committed with reckless indifference.
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And for that reason, the petition for resentencing is denied.”
Smutz timely appealed.
DISCUSSION
Section 1170.95 permits a defendant who was
convicted of felony murder to petition the sentencing court to
have the conviction vacated and to be resentenced on any
remaining counts where, inter alia, the petitioner could not
presently be convicted of murder because of SB 1437’s
changes to the law. (See Pen. Code, § 1170.95, subd. (a)(3).)
These changes include the amendment of Penal Code section
189, subdivision (e) to provide that a defendant is not guilty
of felony murder unless the defendant was at least a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in Penal Code
section 190.2, subdivision (d). (See id., § 189, subd. (e);
Stats. 2018, ch. 1015, § 3.) Where, as here, the court finds
the petitioner has made a prima facie showing of eligibility
for relief, and the parties do not stipulate to relief after
issuance of an order to show cause, the court must hold an
evidentiary hearing on the petitioner’s eligibility for relief.
(Pen. Code, § 1170.95, subds. (c)-(d).)
The standard of proof to be applied at the evidentiary
hearing was unsettled at the time of the November 23, 2020
hearing in this case, but has been clarified by subsequent
caselaw and Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB
775). Section 1170.95 originally provided that the
prosecution’s burden at the evidentiary hearing was to prove
10
beyond a reasonable doubt the petitioner’s ineligibility for
resentencing, which turned in part on whether the petitioner
“could” be convicted of murder after SB 1437. (Former Pen.
Code, § 1170.95, subds. (a)(3), (d)(3).) Well before the
hearing, Duke interpreted this original language as imposing
a standard of proof “essentially identical to the [appellate]
standard of substantial evidence . . . .” (Duke, supra, 55
Cal.App.5th 113, 272.) Beginning only shortly before the
hearing, other published decisions disagreed with Duke,
holding that Section 1170.95 required the prosecution to
convince the trial court, sitting as an independent factfinder,
of the petitioner’s guilt beyond a reasonable doubt. (See
People v. Lopez (2020) 56 Cal.App.5th 936, 949, review
granted Feb. 10, 2021, and cause transferred Dec. 22, 2021,
S265974 [noting on October 30, 2020, that the Duke court
was the “only . . . other court [to have] weighed in on the
nature of the required showing of ineligibility at the hearing
stage”]; People v. Ramirez (2021) 71 Cal.App.5th 970, 984
[“‘it is the [trial] court’s responsibility to act as independent
fact finder’”].) During the pendency of this appeal, SB 775
amended Section 1170.95 to add the following language,
which clarifies that the independent-factfinding standard
applies: “At the hearing to determine whether the petitioner
is entitled to relief, the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder . . . under California law as
amended by [SB 1437]. . . . A finding that there is
substantial evidence to support a conviction for murder . . . is
11
insufficient to prove, beyond a reasonable doubt, that the
5
petitioner is ineligible for resentencing.” (Pen. Code,
§ 1170.95, subd. (d)(3); Stats. 2021, ch. 551, § 2.)
Here, the parties agree the trial court erred in applying
“the Duke standard,” pursuant to which the court denied
Smutz’s petition on the basis of its finding of “substantial
evidence” of Smutz’s guilt under the felony murder rule (as
narrowed by SB 1437). We agree. We cannot fault the court
for accepting the prosecutor’s unopposed invitation to follow
Duke, which remained good law at the time of the hearing.
But with the benefit of subsequent caselaw and SB 775, we
conclude the court’s application of a substantial evidence
standard was error.
We need not address the parties’ dispute regarding
which, if any, harmless-error standard applies, as we
conclude the error was prejudicial even under the Watson
standard advanced by the Attorney General. (See People v.
Sandoval (2015) 62 Cal.4th 394, 422 [under Watson
standard, error is reversible if there is a reasonable
probability -- meaning more than an abstract possibility --
that the appellant would have obtained a more favorable
5
Our Supreme Court initially granted review in Duke on the
issue whether a substantial evidence standard or an
independent-factfinding standard applied, but after the
enactment of SB 775, it transferred the matter to the Court of
Appeal for reconsideration, rendering Duke “either ‘depublished’
or ‘not citable.’” (Duke, S265309, Supreme Court Mins., Jan. 13,
2021, and Nov. 23, 2021.)
12
result absent the error].) The record does not enable us to
determine how the trial court, had it sat as an independent
factfinder, would have evaluated the evidence of Smutz’s
guilt under a still-valid theory of murder. The evidence at
trial raised substantial issues of credibility, as the
prosecution relied primarily on Detective Anderson’s
secondhand account of Mezey’s pretrial statements to him
(admitted in part to impeach Mezey), and his thirdhand
account of Smutz’s disputed admissions to Mezey. Although
the court had presided over the trial, it commented during
the hearing that the jury had had an opportunity to evaluate
challenges to Mezey’s credibility; the court did not purport to
independently evaluate her credibility, or the credibility of
any other witness. On this record, any conclusion as to what
the court would have found as an independent factfinder is
speculative. Accordingly, we will reverse the order denying
Smutz’s petition, and remand for a new evidentiary hearing.
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DISPOSITION
The order denying Smutz’s petition for resentencing
under Section 1170.95 is reversed. The matter is remanded
to the trial court with directions to hold a new evidentiary
hearing on Smutz’s eligibility for relief from his murder
conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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