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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

GABRIEL ANTHONY SMUTZ,

Defendant and Appellant.

 B309624

 (Los Angeles County

 Super. Ct. No. MA028070)

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.
2

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. 
3

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.
4

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 

firearm allegations.1(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.)
5

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.)
6

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
7

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.)
8

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. 
9

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. 
10

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 
11

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 
12

insufficient to prove, beyond a reasonable doubt, that the 

petitioner is ineligible for resentencing.”5(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.)
13

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.
14

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.