People v. Ernst CA3

Filed 11/30/23 P. v. Ernst CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sutter) ----

THE PEOPLE, C096254

Plaintiff and Respondent, (Super. Ct. No. CRF060001103) v.

SCOTT KEITH ERNST, ORDER MODIFYING OPINION AND DENYING Defendant and Appellant. REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed in this case on October 31, 2023, be modified as follows:

1

On page 4, delete the third full paragraph beginning with “We have no difficulty concluding” and replace with the following:

We have no difficulty concluding that an individual who tortured a victim is not similarly situated to an individual who did not kill, did not intend to kill, or was not a major participant in a crime, and the Legislature could rationally determine that someone who imposed torture should be punished differently. Defendant seeks to avoid this distinction by contending that his specific conviction for torture, with malice imputed under the natural and probable consequences doctrine, makes him similarly situated to individuals convicted of murder, attempted murder, or manslaughter under a theory of imputed malice, who are potentially eligible for resentencing. (See CALCRIM No. 402; People v. Prettyman (1996) 14 Cal.4th 248, 260-263.) Even if we were to accept that premise, we would still conclude the Legislature could rationally “ ‘ “take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” ’ ” (Kasler v. Lockyer, supra, 23 Cal.4th at p. 482.) And even if defendant’s conviction for attempted voluntary manslaughter places him in a group similarly situated to individuals convicted of attempted murder or voluntary manslaughter, the Legislature could have reasonably determined there was no need to permit resentencing for attempted voluntary manslaughter because that crime is generally subject to a lesser punishment. Attempted voluntary manslaughter is subject to 18 months, three years, or five years six months in state prison (§§ 193, subd. (a), 664, subd. (a)), whereas voluntary manslaughter is subject to three, six, or 11 years in state prison (§ 193) and attempted murder is subject to five, seven, or nine years (§ 664, subd. (a)). To the extent part of the Legislature’s focus was on reducing the duration of incarceration, it was rationale to address crimes with generally higher sentences.