People v. Smutz CA2/4

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.

2 Ward (December 1, 2006, B179883) Cal.App.Unpub. LEXIS 10906 (Ward).) After the enactment of Senate Bill No.…