CONVICTIONS OF MEN UPHELD WOMAN SLAIN TO COVER UP RAPE.

Byline: KAREN MAESHIRO Staff Writer

An appeals court has upheld the first-degree murder convictions of two Palmdale men for the 2003 slaying of a young woman who was gunned down to keep her from reporting that she had been gang-raped after passing out during a party at an Avenue S apartment.

The Second District Court of Appeal rejected an argument by defendants Scott Ward and Gabriel Smutz that the trial judge erred when she declined to declare a mistrial following a jury tampering incident in which a fellow gang member of the defendants approached jurors and told them to ``vote not guilty.''

``(T)he trial court carefully admonished and instructed the jurors not to consider the incident as evidence or to consider it during deliberations and, additionally, gave the jurors the opportunity to indicate any inability to follow the court's admonishment,'' the appellate ruling said.

``The jurors audibly expressed their ability to remain fair and objective. It is only in exceptional cases that the improper subject matter is of such a character that its effect on the minds of the jurors cannot be removed by the court's admonitions.''

The appellate court also denied the defendants' argument that the prosecution failed to show that the murder was committed to benefit a gang.

Both men admitted in testimony that they were members of a gang, but each denied being an active ``gangbanger,'' the ruling said.

The appellate court did reduce the sentences of both men by 10 years each, agreeing with their contention that a gang enhancement was unauthorized because they were sentenced to 25 years to life for first-degree murder.

Ward and Smutz, both 26, were convicted in the Nov. 30 shooting death of Brandi Olivares, a 21-year-old former Antelope Valley resident who authorities think was raped after passing out at a party, a result of being drugged.

When Olivares, naked, began screaming that she had been raped, authorities said, three men grabbed her and forced her from the apartment into a car. They drove to Barrel Springs Road, let her dress herself and forced her out of the car. She was shot after climbing a fence outside a home, officials said.

Both men were sentenced to 25 years to life in prison for the murder, plus a 25-year firearm enhancement and a 10-year gang enhancement.

A witness told investigators Smutz told her that he, Ward and two other men had given Olivares Klonopin, a pain medication with a sedative effect, and that they had sex with her when she was ``drugged out,'' the ruling said.

There was no physical evidence that Olivares had used Klonopin although her blood tested positive for methamphetamine, the ruling said.

Ward testified in court and admitted shooting Olivares but claimed that he was alone with her at the time and meant to scare her, not kill her. Smutz testified he alone had sex with Olivares, and that she left the apartment. Smutz denied having any Klonopin with him that night, seeing anyone else with it or giving any to Olivares. He claimed that Olivares was never unconscious, but that she was alert at all times.

In May 2004, after both defendants had been ordered to stand trial, detectives arranged to have Ward and Smutz placed in the same jail cell and taped their conversation. Among other things, Ward assured Smutz, ``If it looks like we're gonna go down, I'm going down alone,'' and, ``I got paperwork, ... numbers, addresses, family members.''

A homicide detective testified that ``paperwork'' is a gang term with a meaning similar to ``hit list,'' and it usually consists of court transcripts and police reports with witnesses' names and information, the ruling said.

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