People v. Reitzell CA1/3

Filed 7/20/23 P. v. Reitzell CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A163806
v.
MARJORIE REITZELL, (San Mateo County
Super. Ct. No. SC081182A)
Defendant and Appellant.
In 2015, Marjorie Reitzell was convicted of multiple offenses while
driving intoxicated, including two murders. (Pen. Code § 187, subd. (a);
statutory references are to this code unless otherwise indicated.) The trial
court imposed an aggregate sentence of 30 years to life. In October 2021, the
court held a hearing to reconsider Reitzell’s sentence due to a discrepancy in
the abstract of judgment. At that hearing, the court ordered that sentence
enhancements for causing bodily injury or death to multiple victims would be
stayed instead of running concurrently, and otherwise reaffirmed its original
sentencing decision.
In this appeal from the resentencing order, Reitzell seeks a remand for
the court to reconsider her sentence in light of an ameliorative amendment to
section 654 that went into effect in 2022. Although Reitzell is entitled to the
benefit of that amendment, the record shows unequivocally that the court
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would not exercise its new discretion to reduce Reitzell’s sentence.
Accordingly, we affirm the October 2021 resentencing order.
BACKGROUND
I. The 2013 Incident
In October 2013, Reitzell was arrested at the scene of a traffic collision
in Menlo Park. Responding officers found two pedestrians lying dead in the
road, and a group of teenagers who reported that Reitzell’s car jumped over a
center median and hit their car. Reitzell was found in her car, where it had
struck a tree. She had a bottle of brandy in a paper bag, appeared to be
intoxicated, and admitted that she hit another car. Reitzell was transported
to a hospital where her blood alcohol level was determined to be 0.23 percent.
Investigators determined that a few hours prior to the Menlo Park
collision, Reitzell had collided with another vehicle when the driver slowed
for a traffic light. A friend of Reitzell’s also reported seeing her drink half a
bottle of wine earlier that day. When interviewed by police, Reitzell stated
that prior to the collision in Menlo Park, she had been involved in a minor
collision in the parking lot of a store where she purchased alcohol. She
continued to drive, and drank a bottle of brandy while driving home, then
decided to pull over because of poor vision and because she needed to use the
bathroom. Reitzell recalled seeing bright lights before hitting a tree. She
claimed not to remember hitting pedestrians or another car.
II. Reitzell’s Convictions and Original Sentence
In 2014, Reitzell was charged with the following offenses: two counts of
murder, with enhancements for intentional and personal infliction of great
bodily injury (§§ 187, subd. (a) & 1203.075, subd. (a)(1)); two counts of
vehicular manslaughter while driving intoxicated, with enhancements for
causing great bodily injury (§§ 191.5, subd. (a) & 1192.7, subd. (c)(8); Veh.
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Code § 23152); one count of driving under the influence and causing injury to
multiple victims (Veh. Code, §§ 23153, subd. (a) & 23558); and one count of
driving with a blood alcohol content of 0.08 or more and causing bodily injury
to more than one victim (Veh. Code, §§ 23153, subd. (b) & 23558). The
information also alleged a prior conviction for driving under the influence
(DUI) that occurred within 10 years of the charged offenses. (Veh. Code,
§§ 23540 & 23152, subd. (a).)
On May 20, 2015, a jury convicted Reitzell of all charges. On July 8,
the court held a hearing to address posttrial motions and announce sentence.
The court denied multiple defense motions, including a motion for new trial,
a motion to find defendant guilty of the lesser charge of involuntary
manslaughter, and a motion to set aside one of the murder verdicts. Turning
to sentencing, the court stated that it had considered the parties’ briefs, and
the probation report, and it had also sat through trial, and then invited
argument.
The defense argued that the court should impose a sentence of 15 years
to life in order to satisfy the requirements of section 654. Defense counsel
reasoned that all offenses arose out of a single transaction and therefore the
court was required to impose the longest sentence, which was 15 years to life
for one of the section 187 convictions. The prosecutor argued the court should
impose an aggregate sentence of 30 years to life, pursuant to authority
establishing that multiple punishment is permissible under section 654 when
a single act of violence injures or kills multiple victims. (People v. Murray
(1990) 225 Cal.App.3d 734, 749 (Murray); People v. Gutierrez (1987) 189
Cal.App.3d 596, 602, fn. 4.)
The prosecutor also argued that several other factors justified imposing
consecutive sentences for the murders, including Reitzell’s “very extensive
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criminal history,” the fact that she was on probation for driving under the
influence when she committed her current offenses, and her “absolute lack of
remorse.”
The court prefaced its sentencing decision with the following statement:
“This was a tragic and entirely avoidable act done by, in my opinion, someone
who demonstrates no respect for the law nor appreciates the dangerousness
of her conduct. This was murder.” The court found that Reitzell acted
“wantonly, recklessly and with malice aforethought,” and that she drank so
much that “she had no idea that she mowed down two innocent people.” The
court also concluded Reitzell lacked remorse and was “almost too cavalier”
about the lives she ruined. As support for this finding, the court relied on
Reitzell’s trial testimony, when she was untruthful about the amount of
alcohol she had consumed and “insult[ed] the intelligence of the jury” by
“concoct[ing] a story” that a dog ran in the street.
In pronouncing Reitzell’s sentence, the court stated that it was
choosing to impose consecutive sentences for the two murder convictions,
listing multiple reasons: the multiple victim exception to section 654; the
crimes involved great violence and callousness; Reitzell had numerous prior
DUI convictions outside the statutory period; she was on probation for a DUI
when she committed the current offenses; she had seven prior felony
convictions and 12 misdemeanor convictions; and she displayed little insight
into her conduct. Accordingly, Reitzell was sentenced to consecutive
sentences of 15 years to life for the two murder convictions (counts 1 & 2).
For the two gross vehicular manslaughter convictions (counts 3 & 4),
the court imposed an upper term of 10 years, which it stayed pursuant to
section 654. Similarly, the court imposed an upper term sentence of three
years for driving with a blood alcohol content of 0.08 or more and causing
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bodily injury to more than one victim (count 6), which it stayed under section
654.
Reitzel’s count 5 conviction for driving under the influence causing
injury was based on her collision with a car after jumping the median. The
court imposed an aggravated three-year term, and three one-year
enhancements, which corresponded to three passengers who were injured.
The court ordered these terms to run concurrently with Reitzel’s 30-year-to-
life sentence for the murders.
III. The Resentencing Hearing
In 2018 and 2019, the California Department of Corrections and
Rehabilitation (CDCR) sent letters to the sentencing court and district
attorney, inquiring whether there were errors or discrepancies in the abstract
of judgment pertaining to Reitzell’s determinate sentences. On October 1,
2021, the court held a hearing to consider the matter. The court determined
that enhancements pertaining to Reitzell’s count 5 conviction for driving
under the influence and causing injury should have been stayed rather than
ordered to be concurrent. In ordering this change to be made, the court
expressed its view that “this is just, to me, an abstract issue,” which did not
affect the court’s “goal” to impose an aggregate sentence of 30 years to life for
Reitzell’s offenses.
At the October 2021 hearing, defense counsel asked the court to
reconsider other aspects of Reitzel’s sentence and requested the opportunity
to explore whether Reitzel’s behavior in prison might warrant a reduction of
her sentence. The court denied these requests, explaining that it
remembered this case “extremely well,” and it had taken great care when
making its sentencing choices. The court also recalled that it could actually
have sentenced Reitzell to a longer sentence.
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At the resentencing hearing, the parties disagreed about whether the
court had discretion to reduce Reitzell’s sentence based on her prison conduct.
The court found it unnecessary to decide whether it had the power to
reconsider other aspects of Reitzel’s sentence because it would choose not to.
In this regard, the court stated: “I would not re-sentence her. I’m not certain
that I have the power, but I would simply say I’m not re-sentencing her. And
if I had the power to re-sentence her, I would not re-sentence her.” When
defense counsel alluded to the need to make a record, the court responded:
“. . . And using all the discretion that I have, I would deny the re-sentencing
and because it wouldn’t result in anything different, in my opinion. Looking
at everything in the best light, she deserves this; she killed a family.”
DISCUSSION
The sole issue raised on appeal is whether this matter should be
remanded for another sentencing hearing due to the fact that section 654 was
amended while this appeal was pending.
When the resentencing hearing was held in October 2021, section 654,
subdivision (a) provided that when a defendant commits an act punishable by
two or more provisions of the law, she must be punished under the provision
calling for the longest possible term. (Stats. 1997, ch. 410, § 1.) This
subdivision was amended in January 2022, so that it now provides: “An act
or omission that is punishable in different ways by different provisions of law
may be punished under either of such provisions, but in no case shall the act
or omission be punished under more than one provision.” (§ 654, subd. (a).)
Under the amended statute a court is no longer required to impose the
longest possible term of imprisonment when multiple offenses are based on
the same act or omission. (People v. Mani (2022) 74 Cal.App.5th 343, 379
(Mani).)
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The amendment to section 654 applies retroactively to defendants
whose cases are not yet final. (People v. Sek (2022) 74 Cal.App.5th 657, 673;
Mani, supra, 74 Cal.App.5th at p. 379.) Thus the People concede, and we
agree, that the current version of section 654 applies in Reitzell’s case due to
the pendency of this appeal. However, we also agree with the People that a
remand is not required under the circumstances presented here.
“Generally, when the record shows that the trial court proceeded with
sentencing on the erroneous assumption it lacked discretion, remand is
necessary so that the trial court may have the opportunity to exercise its
sentencing discretion at a new sentencing hearing. [Citations.] Defendants
are entitled to ‘sentencing decisions made in the exercise of the “informed
discretion” of the sentencing court,’ and a court that is unaware of its
discretionary authority cannot exercise its informed discretion.” (People v.
Brown (2007) 147 Cal.App.4th 1213, 1228.) By the same reasoning, when an
ameliorative amendment gives a sentencing court new discretion, a remand
will often be required, as the trial court could not have been aware of that
discretion when sentence was originally announced. (See e.g. People v.
McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).)
However, “if ‘ “the record shows that the trial court would not have
exercised its discretion even if it believed it could do so, then remand would
be an idle act and is not required.” ’ ” (McDaniels, supra, 22 Cal.App.5th at
p. 425; see also People v. Jones (2019) 32 Cal.App.5th 267, 272–273; People v.
McVey (2018) 24 Cal.App.5th 405, 418; People v. Gutierrez (1996) 48
Cal.App.4th 1894, 1896.) This is such a case. When the trial court
announced Reitzell’s sentence, it made clear its intention to impose
consecutive 15-year-to-life sentences for the two murders, despite having
discretion to impose concurrent sentences. Moreover, at the resentencing
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hearing, the court was adamant that it would not change this sentencing
decision, even if it had discretion to do so.
Reitzell argues the trial court should not be taken at its word, offering
three reasons. First, she contends that when the court stated it would not
consider reducing Reitzell’s sentence it did not actually have the power under
section 654 to punish Reitzell for vehicular manslaughter instead of murder,
nor did defense counsel have the opportunity to argue for this result. (Citing
People v. Johnson (2019) 32 Cal.App.5th 26.) But these circumstances will
always be present when an ameliorative amendment is applied retroactively,
which is why remand is the general rule. However, the facts of this case
warrant applying an exception to this general rule, as we have explained,
because the trial court unequivocally stated that it would not use any
discretion it might have to reduce the 30-year-to-life sentence.
Next, Reitzell argues that the trial was not sufficiently “vehement”
about its intention to impose a 30-year-to-life sentence. The record is to the
contrary. The trial court could not have been more clear in expressing its
“goal” to hold Reitzell accountable for two murders by imposing consecutive
sentences for those crimes, as it was authorized to do under the multiple
victim exception to section 654. (Murray, supra, 225 Cal.App.3d at p. 749.)
Finally, Reitzell points out that the trial court stated that it was not
giving Reitzell the most stringent sentence it could impose. She fails to
explain how this circumstance works in her favor. The record shows that the
reason the court noted that it could have applied a longer sentence was to
reinforce the fact that it made a conscious choice to impose concurrent 15-
year-to-life terms for the murders. Because the court clearly conveyed that it
would not exercise any discretion it might have to reduce Reitzell’s sentence,
a remand for resentencing is not required.
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DISPOSITION
The judgment and sentence are affirmed.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
RODRÍGUEZ, J.
People v. Reitzell (A163806)
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