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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

GABRIEL A NTHONY SMUTZ

,
Defendant and Appellant. B 309624

(Los Angeles County Super. Ct. No. MA028070 )

APPEAL from a n order of the Superior Court of
Los Angeles County, Lisa Mangay C hung , 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

. Web ster , 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 secti on 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, a ccording 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 Oliv ares 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 t he 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, t he 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 sub stantial 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 addre ss 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.Un pub. 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 throu gh 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 De partment 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 f rom 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 adjace nt 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 O livares’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 l ocker 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 attacke d her, and she left the apartment without him. ( Ward

, supra , Cal.App.Unpub. LEXIS 10906,
at *7

- *8, *64.) Smutz denied raping Olivares, kidnapp ing7

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 kidnapp ing 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 Sprin gs 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 th e 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 wer e 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 1 437 (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
felon y 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 admission s. The prosecutor argued that the jury had credited Smutz’s admissions, and that the c ourt had no basis to reevaluate th e

3 SB 1437 narrowed the felony murder rule by amend ing Penal Code section 189, subdivision (e) to provide that a defendant is not guilty of f elony 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, sub d. (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 t o 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, t he prosecutor argued

, Smutz was ineligible for relief because there wa s 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 accord ance with Duke

. T he 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 var ious 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 adm issions 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 evi dence 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
S ection 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 whe re , 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 defendan t was at leas t 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 pet itioner 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 , § 117 0.95, 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.) (S B 775). Section 1170.95 original ly provided that the prosecution’s burden at the evidentiary hearing was to prove11

beyond a reasonable doubt the petitioner’s ineligibility for resentencing , which turned in part on whether the petitioner
“could” be convicte d of murder after SB 1437 . (Former Pen. Code, § 1170.95, subd s

. (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 .

. . .” ( Du ke

, supra , 55 Cal.App.5th 113, 272 .) B eginning only shortly before the hearing, other published decisions disagreed with Duke

, h olding th at Section 1170.95 required the prosecution to convince the trial court, sitting as an independent factfin der, 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 ’”] .) D uring 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 b e 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 .

. . is12

insufficie nt 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 whic h the court den ied 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 f ollow
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
wh ich, 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 inde pendent

- 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].) T he record does not enable us to
determine how the trial court , had it sat as an independent
fa ctfinder, 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
second hand account of Mezey’s pr etrial statements to him (admitted in part to impeach Mezey ), and his thirdhand
account of Smutz’s disputed admissions to Mezey. Although

t he court had presided over the trial, it commented during the hearing that the jury had had a n opportunity to evalua te 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 specul ative. 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.

COLLIN S , J.