People v. Messer CA3

Filed 3/4/22 P. v. Messer CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE, C094223

Plaintiff and Respondent, (Super. Ct. No. P16CRF0133)

v.

JESSE MESSER,

Defendant and Appellant.

During a bout of road rage, defendant Jesse Dean Messer fired multiple rounds from a semiautomatic handgun into an occupied vehicle. (People v. Messer (Oct. 9, 2020, C086503) [nonpub. opn.].) A jury found defendant guilty of two counts of assault with a semiautomatic firearm, two counts of shooting at an occupied vehicle, and two counts of possession of a firearm by a convicted felon. (Ibid.) Following defendant’s initial appeal, we remanded the matter for resentencing under newly enacted legislation applicable to him but affirmed in all other respects. (Ibid.) On appeal after remand, defendant argues: (1) the case must be remanded to the trial court for resentencing under

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amended Penal Code1 section 654; (2) the order to pay the cost of preparing the probation report must be stricken as it is no longer authorized; and (3) the abstract of judgment must be amended to reflect the correct date of sentencing and number of custody credits following defendant’s sentencing. The People concede on all three grounds, and we agree. Accordingly, we vacate the cost imposed for preparation of the probation report. The matter is further remanded for the trial court to exercise discretion under amended section 654. When preparing an amended abstract of judgment, the trial court is directed to provide the date of resentencing upon remand and recalculate defendant’s credits to that day. FACTUAL AND PROCEDURAL BACKGROUND I Facts Underlying The Conviction On April 7, 2016, defendant and his brother were driving in separate trucks on Highway 193 in Georgetown. (People v. Messer, supra, C086503.) Keith N. was driving in his own car, between defendant and his brother. (Ibid.) According to Keith, defendant’s brother slammed on his brakes, causing Keith to do the same in front of defendant. (Ibid.) According to defendant’s statement to police following his arrest, Keith pulled in front of defendant’s truck and slammed on the brakes. (Ibid.) Regardless, defendant responded by firing at least two shots from a semiautomatic handgun at the back of Keith’s car. (Ibid.) In an effort to avoid further confrontation, Keith pulled around defendant’s brother’s truck and continued down the highway. (Ibid.) Keith eventually pulled into a parking lot less than a mile down the road, where he attempted to call a deputy sheriff who was an acquaintance but he was unsuccessful. (People v. Messer, supra, C086503.) As Keith attempted to leave the parking lot,