Filed 10/9/20 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C086503
Plaintiff and Respondent, (Super. Ct. No. P16CRF0133)
v.
JESSE DEAN MESSER,
Defendant and Appellant.
Defendant Jesse Dean Messer and his codefendant brother Joseph Ray Messer,
driving separate trucks, got into a vehicular altercation with another driver, K.N., as they
drove down Highway 193 in Georgetown.1 The evidence in the record conflicts on the
question of who started the altercation. Either Joseph slammed on his brakes in front of
K.N. or K.N. slammed on his brakes in front of defendant. Regardless of who started it,
1 Because defendant and his brother have the same last name, to avoid confusion we
refer to Joseph Messer by his first name throughout this opinion.
1
defendant escalated the conflict by pulling out a .45-caliber semiautomatic handgun and
firing one or two rounds at the back of K.N.’s car as he drove away. A short time later,
the men again encountered each other in a nearby parking lot. Joseph quickly pulled in
front of K.N., sideswiping his driver’s side rearview mirror, and got out to confront him.
Defendant pulled up behind K.N. and also got out of his truck. As K.N. maneuvered
around Joseph’s truck and drove away, defendant fired another round at the back of his
car.
Defendant was convicted by jury of two counts of assault with a semiautomatic
firearm (counts 2 & 4), finding he personally used a firearm in committing the offenses,
two counts of shooting at an occupied vehicle (counts 3 & 5), and two counts of
possession of a firearm by a convicted felon (counts 6 & 7).2 Following a court trial on
allegations defendant was previously convicted of a serious felony offense and also
served five separate prior prison terms for felony convictions, the trial court found each
of these allegations to be true. Defendant was sentenced to serve an aggregate
determinate term of 41 years 8 months in state prison.
On appeal, defendant contends: (1) the evidence is insufficient to support his
convictions for assault with a semiautomatic firearm (count 2) and shooting at an
occupied vehicle (count 3); (2) the trial court prejudicially erred by failing to instruct, sua
sponte, on grossly negligent discharge as a lesser included offense to shooting at an
occupied vehicle; (3) we must remand the matter to the trial court for a new sentencing
hearing because Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013,
§§ 1-2) (Senate Bill 1393), which became effective January 1, 2019, and gives the trial
court discretion to strike five-year prior serious felony enhancements in the interest of
2 Count 1 charged both defendant and Joseph with robbery based on K.N.’s
assertion that Joseph took his cell phone during the altercation in the parking lot. The
jury acquitted both defendants of this crime. We mention it no further.
2
justice, applies retroactively to cases not yet final on appeal; and (4) we must also remand
the matter to the trial court with directions to strike all five of defendant’s one-year prior
prison term enhancements because Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats.
2019, ch. 590, § 1) (Senate Bill 136), which became effective January 1, 2020, and
eliminates such enhancements for defendant’s crimes, also applies retroactively to cases
not yet final on appeal.
We conclude the evidence is more than sufficient to support defendant’s
convictions in counts 2 and 3. Indeed, these convictions are supported by his own
account of events given to detectives following his arrest. Assuming, without deciding,
the trial court erred in failing to instruct the jury on grossly negligent discharge of a
firearm as a lesser included offense to count 3, any such error was manifestly harmless.
Defendant’s claims regarding the retroactive application of Senate Bill 1393 and Senate
Bill 136, however, have merit and require remand for a new sentencing hearing during
which the trial court shall exercise its discretion regarding the prior serious felony
enhancement and strike the prior prison term enhancements.3
FACTS
The night of April 7, 2016, K.N. became involved in a vehicular altercation with
defendant and his brother Joseph that caused defendant to fire multiple rounds at the back
of K.N.’s car; he did so at two distinct locations separated spatially by less than a mile of
highway and temporally by a span of several minutes. We recount the details of these
shootings in the light most favorable to the judgment. (See People v. Ochoa (1993) 6
Cal.4th 1199, 1206.)
3 Our conclusion regarding Senate Bill 136 makes it unnecessary to address
defendant’s additional assertion that the trial court was not authorized to impose two of
the five prior prison term enhancements in this case.
3
Shooting on Highway 193
The genesis of the vehicular altercation in this case is unclear. According to
defendant’s statement to police following his arrest, K.N. pulled in front of his truck on
Highway 193 and “starts slamming on his brakes.” Defendant added: “He does it to me
every time he fucking sees me.” According to K.N.’s testimony at trial, as he drove
down Highway 193, his car was behind Joseph’s truck and in front of defendant’s truck
on the highway. Before K.N. realized defendant was behind him, Joseph started
“slamming on his brakes and pretty much stopping in the road.” K.N. used his brakes in
response, and then noticed defendant was, as K.N. put it, “pretty much on my bumper.”
Regardless of who stopped in front of whom on the highway, K.N.’s testimony
and defendant’s statement to police generally align with respect to what happened next:
defendant pulled out a semiautomatic handgun and fired at the back of K.N.’s car. K.N.
testified that after stopping behind Joseph’s truck and seeing defendant’s truck behind
him, he drove around Joseph’s truck and continued down the highway in order to avoid a
confrontation with the brothers. As K.N. maneuvered around Joseph’s truck, Joseph
pulled into a parking lot on the side of the highway while defendant, still behind K.N. on
the highway, held a handgun outside his driver’s side window and fired at least two
rounds at the back of K.N.’s car.
Although the account defendant provided to police omits any involvement by his
brother in the events unfolding on the highway, he candidly admitted pulling out a
.45‑caliber semiautomatic handgun and firing at the back of K.N.’s car “[o]nce or twice”
as K.N. “hauled ass” down the highway. Defendant claimed he did so because he
thought K.N. “was pulling his gun out.” Defendant also explained that when he pulled
out his handgun to shoot at K.N.’s car, it accidentally discharged, sending one round into
defendant’s thigh. However, as defendant also explained, he “didn’t even know” at first
because it “didn’t hurt when it happened” and “just started burning” after he fired at
K.N.’s car.
4
The shooting on Highway 193 supported defendant’s convictions in counts 2 and 3
for assault with a semiautomatic firearm and shooting at an occupied motor vehicle.
Shooting in the Wellness Center Parking Lot
After the shooting on Highway 193, K.N. continued down the highway and pulled
into the parking lot of a Mar-Val grocery store less than a mile away. K.N. parked in
front of the store and pulled out his cell phone to call a sheriff’s deputy to whom he had
previously spoken regarding an unrelated matter. Realizing he did not have that deputy’s
business card with him, K.N. decided to drive home. On his way back to the highway, in
a smaller parking lot next to the Divide Wellness Center, K.N. had his second run-in of
the night with defendant and his brother.
Meanwhile, during the brief period of time it took K.N. to drive to the store and
decide to drive home, defendant and Joseph drove to a friend’s house located a short
distance down a road that also accessed the Mar-Val and wellness center parking lots.
They left a few minutes later and headed back toward the Mar-Val grocery store, again in
separate trucks.
Returning to K.N.’s testimony, as he was trying to leave, defendant and his brother
pulled into the wellness center parking lot. Joseph quickly pulled in front of K.N.,
sideswiping his driver’s side rearview mirror, and got out of his truck. Joseph was
holding a knife as he approached the driver’s side of K.N.’s car. Defendant pulled up
behind K.N. and also got out of his truck. According to K.N., he initially pulled out his
cell phone in an attempt to take photos or video of the encounter, but Joseph grabbed his
phone from him. At this point, K.N. put his car in reverse in order to create enough room
to maneuver around Joseph’s truck, and then, as he put it, “pretty much jammed out of
there.” As K.N. quickly departed, defendant fired another round at the back of his car.
During defendant’s statement to police, although he provided a conflicting account
of how their second run-in of the night began, defendant admitted firing one round at the
back of K.N.’s car as he drove away.
5
We finally note another individual, E.B., who was unloading groceries into her car
in the Mar-Val parking lot when this shooting happened, testified to hearing a single shot
fired from the direction of the wellness center.
The shooting in the wellness center parking lot supported defendant’s convictions
in counts 4 and 5 for assault with a semiautomatic firearm and shooting at an occupied
motor vehicle.4
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence is insufficient to support his convictions for
assault with a semiautomatic firearm (count 2) and shooting at an occupied vehicle (count
3) based on the shooting on Highway 193. He is mistaken.
The standard of review is well settled: “When reviewing a challenge to the
sufficiency of the evidence, we ask ‘ “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” ’ [Citation.] Because the sufficiency
of the evidence is ultimately a legal question, we must examine the record independently
for ‘ “substantial evidence—that is, evidence which is reasonable, credible, and of solid
value” ’ that would support a finding beyond a reasonable doubt. [Citation.]” (People v.
Banks (2015) 61 Cal.4th 788, 804.)
Defendant argues the evidence is insufficient to support his convictions in counts 2
and 3 because “[t]he evidence reasonably supports only one shot fired [on Highway
4 Defendant’s possession of a firearm during these events, along with proof he was
previously convicted of various felonies, supported his conviction in count 6 for
possession of a firearm by a convicted felon. Count 7 involved defendant’s possession of
a rifle when he was arrested over two weeks after shooting at K.N.’s car.
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193]” and that “shot was unintentionally fired at [defendant’s] own thigh.” He bases this
argument on testimony from Joseph and another defense witness, N.W., who operated an
inn along the highway in the general vicinity of where the shooting occurred and was
outside the inn when it happened. N.W. testified he saw two vehicles driving down the
highway at a high rate of speed, a car being following by a truck. The driver of the car
“leaned out of the window -- the driver’s window,” and appeared to be “taking exception
to the fact that he was being tailgated.” The car then stopped abruptly, causing the truck
to do the same. N.W. heard “squealing brakes” and “a gunshot,” followed “a couple of
minutes” later, or “less than that,” by “two shots, one after the other, and then a little bit
of a break and then another shot.” Defendant focuses on the first gunshot described by
N.W. and argues that was the only shot fired on Highway 193, claiming the other three
shots were fired in the wellness center parking lot. And because it was undisputed
defendant shot himself in the thigh on Highway 193, defendant claims the only
reasonable inference from the evidence is the only shot fired on the highway was the one
that entered his thigh. N.W.’s testimony does support this view of the facts. It is also
supported by Joseph’s testimony. He denied being involved in the altercation between
defendant and K.N. on the highway, claiming he was ahead of both vehicles and heard
one shot fired behind him. Joseph also testified defendant fired multiple rounds at K.N.’s
car in the wellness center parking lot.
The problem with defendant’s argument is that it views the evidence in the light
most favorable to himself, whereas we must view it in the light most favorable to the
prosecution and ask whether any rational trier of fact could have concluded defendant
fired, in addition to the round that entered his thigh, at least one other round at the back of
K.N.’s car. As we have recited in some detail, and decline to repeat here, defendant’s
own statement to police supports the view that he accidentally shot himself in the thigh,
did not even realize he did so at the time, and then fired one or two rounds at the back of
K.N.’s car on Highway 193. K.N. also testified defendant fired at least two rounds at his
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car on the highway. This evidence is more than sufficient to support defendant’s
convictions in counts 2 and 3.
Finally, we also reject defendant’s argument that K.N.’s testimony was
“discredited” by that of Joseph and N.W. Nor can we accept defendant’s argument he
“was most likely mistaken” when he told police he fired at K.N.’s car on the highway.
As the jury was correctly instructed with respect to evaluating conflicting evidence, “you
must decide what evidence, if any, to believe.” We cannot conclude testimony from the
victim in this case, corroborated by defendant’s own admissions to law enforcement,
amounts to insufficient evidence to support the jury’s verdicts.
II
Failure to Instruct on Grossly Negligent Discharge
Defendant also claims the trial court prejudicially erred by failing to instruct, sua
sponte, on grossly negligent discharge as a lesser included offense to shooting at an
occupied vehicle. We conclude any error was harmless.
The trial court possesses a sua sponte duty to instruct on all lesser included
offenses “ ‘when the evidence raises a question as to whether all of the elements of the
charged offense were present [citation], but not when there is no evidence that the offense
was less than that charged. [Citations.]’ ” (People v. Breverman (1998) 19 Cal.4th 142,
154 (Breverman).) However, “the existence of ‘any evidence, no matter how weak’ will
not justify instructions on a lesser included offense, but such instructions are required
whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial
enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this
context is ‘ “evidence from which a jury composed of reasonable [persons] could . . .
conclude[]” ’ that the lesser offense, but not the greater, was committed. [Citations.]”
(Id. at p. 162.)
As defendant correctly observes, grossly negligent discharge of a firearm,
requiring the willful discharge of a firearm “in a grossly negligent manner which could
8
result in injury or death to a person” (Pen. Code, § 246.3),5 is a lesser included offense to
the crime of shooting at an occupied motor vehicle (§ 246). (People v. Overman (2005)
126 Cal.App.4th 1344, 1360; People v. Ramirez (2009) 45 Cal.4th 980, 983.)
Defendant argues instruction on grossly negligent discharge was required because
there is substantial evidence in the record showing he committed that crime on Highway
193, but not the greater offense of shooting at an occupied motor vehicle. In making this
argument, defendant again relies on the testimony of Joseph and N.W., both of whom
claimed to have heard only one shot fired on Highway 193. Again pointing out it was
undisputed he fired one round into his own thigh on the highway, defendant argues that
shot, although fired in a grossly negligent manner, was obviously not fired at K.N.’s car
in violation of section 246.
We have already explained that other, more compelling, evidence established
defendant fired at least one additional round at K.N.’s car on the highway that night. In
light of this other evidence, most importantly, defendant’s admission to having fired at
K.N.’s car on Highway 193, we need not determine whether the testimony from Joseph
and N.W. was substantial enough to warrant instruction on grossly negligent discharge in
violation of section 246.3. Even assuming the trial court erred in failing to so instruct the
jury, we conclude any such error was harmless.
“[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully,
on all lesser included offenses and theories thereof which are supported by the evidence
must be reviewed for prejudice exclusively under [People v.] Watson [(1956) 46 Cal.2d
818 (Watson)]. A conviction of the charged offense may be reversed in consequence of
this form of error only if, ‘after an examination of the entire cause, including the
evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant
5 Undesignated statutory references are to the Penal Code.
9
would have obtained a more favorable outcome had the error not occurred (Watson,
supra, 46 Cal.2d 818, 836).” (Breverman, supra, 19 Cal.4th at p. 178, fn. omitted.)
Under this standard, we “focus[] not on what a reasonable jury could do, but what such a
jury is likely to have done in the absence of the error under consideration. In making that
evaluation, [we] may consider, among other things, whether the evidence supporting the
existing judgment is so relatively strong, and the evidence supporting a different outcome
is so comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result.” (Id. at p. 177.)
Without again recounting K.N.’s testimony and defendant’s statement to police
following his arrest, we conclude this evidence was so strong, when compared to the
testimony defendant relies on to support the theory he fired only one shot into his own
thigh on Highway 193, there is no reasonable probability the jury would have convicted
him of grossly negligent discharge rather than shooting at an occupied motor vehicle had
it been instructed on that lesser offense. The assumed error is therefore harmless.
III
Retroactivity of Senate Bill 1393
We do agree with defendant’s assertion the matter must be remanded to the trial
court for an exercise of discretion pursuant to Senate Bill 1393.
Defendant was sentenced in January 2018. The law at that time did not allow the
trial court to strike a prior serious felony five-year enhancement under section 667,
subdivision (a)(1). Senate Bill 1393 removed this prohibition effective January 1, 2019.
(Stats. 2018, ch. 1013, §§ 1, 2.)
Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), defendant argues these
amendments apply to him because his judgment is not yet final. In Estrada, our Supreme
Court stated: “When the Legislature amends a statute so as to lessen the punishment it
has obviously expressly determined that its former penalty was too severe and that a
lighter punishment is proper as punishment for the commission of the prohibited act. It is
10
an inevitable inference that the Legislature must have intended that the new statute
imposing the new lighter penalty now deemed to be sufficient should apply to every case
to which it constitutionally could apply.” (Id. at p. 745.) This includes “acts committed
before its passage provided the judgment convicting the defendant of the act is not final.”
(Ibid.) Thus, under Estrada, absent evidence to the contrary, we presume the Legislature
intended a statutory amendment reducing punishment to apply retroactively to cases not
yet final on appeal. (Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.)
Our Supreme Court has also applied the Estrada rule to amendments giving the trial court
discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.)
The Attorney General concedes the rule of Estrada requires retroactive application
of Senate Bill 1393 to defendant’s case, but argues remand is nevertheless unnecessary.
As the Attorney General points out, we are not required to remand the matter to allow the
trial court to exercise its discretion if “the record shows that the trial court clearly
indicated when it originally sentenced the defendant that it would not in any event have
stricken [the] enhancement.” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
Moreover, the trial court need not have specifically stated at the original sentencing
hearing that it would not have stricken the enhancement if it had the discretion to do so.
Rather, we may infer what the trial court’s intent would have been from its statements
and sentencing decisions at the original sentencing hearing. (People v. McVey (2018) 24
Cal.App.5th 405, 419 [“In light of the trial court’s express consideration of the factors in
aggravation and mitigation, its pointed comments on the record, and its deliberate choice
of the highest possible term for the firearm enhancement, there appears no possibility
that, if the case were remanded, the trial court would exercise its discretion to strike the
enhancement”]; see also People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896
(Gutierrez) [“the trial court indicated that it would not, in any event, have exercised its
discretion to lessen the sentence” and therefore “no purpose would be served in
remanding for reconsideration”].)
11
The Attorney General argues remand is unnecessary “because the trial court’s
statements at sentencing and other sentencing choices clearly indicated that it would not
have dismissed the prior serious felony enhancement in any event.” We are not
persuaded. We first note, as our colleagues at the Second Appellate District recently
observed, “what a trial court might do on remand is not ‘clearly indicated’ by considering
only the original sentence.” (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-
1111.) In Gutierrez, in imposing the maximum possible sentence, the trial court “stated
that imposing the maximum sentence was appropriate” in order to “ ‘keep [the defendant]
off the street as long as possible.’ ” (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) That
clearly indicated the trial court would not have exercised its discretion in the defendant’s
favor.
Here, as the Attorney General points out, the trial court also imposed an
“aggravated sentence” for defendant’s conduct. In addition to the length of the sentence,
the Attorney General relies on the following statements made by the trial court when
denying defendant’s motion to strike the prior serious felony conviction for purposes of
the three strikes law under People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero): “The crimes that were committed in this case were just too serious. We have
two separate instances where the [d]efendant shot at an occupied vehicle. And, frankly, it
could have resulted in death or serious injury not only to the alleged victim in this case
but to a stander-by who could have been in the wrong place at the wrong time. [¶] . . . [¶]
And based upon the severity of this case and the . . . nature of it and considering the
[d]efendant’s past record, I could not find that this was outside the spirit of the Three
Strikes Law. I considered it. I considered it long and hard, but it certainly does seem to
fit within the spirit of that law.”
We cannot conclude these statements foreclose the possibility of an exercise of
Senate Bill 1393 discretion in defendant’s favor. This is because “ ‘the Three Strikes law
does not offer a discretionary sentencing choice, as do other sentencing laws, but
12
establishes a sentencing requirement to be applied in every case where the defendant has
at least one qualifying strike, unless the sentencing court “conclud[es] that an exception
to the scheme should be made because, for articulable reasons which can withstand
scrutiny for abuse, this defendant should be treated as though he actually fell outside the
Three Strikes scheme.” ’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
“[T]he court in question must consider whether, in light of the nature and circumstances
of his [or her] present felonies and prior serious and/or violent felony convictions, and the
particulars of his [or her] background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he [or she] had not previously been convicted of one or more serious and/or
violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
In denying defendant’s Romero motion, the trial court highlighted the seriousness
of defendant’s conduct, but it did so in the context of concluding defendant did not
clearly fall outside the spirit of the three strikes law. While a similar analysis should be
employed in determining whether or not to strike a prior for purposes of the five-year
enhancement, this is a separate inquiry from the Romero inquiry. It does not follow that a
defendant who falls within the spirit of the three strikes law under Romero cannot
nevertheless have the additional five-year enhancement term stricken in furtherance of
justice under section 1385 following the passage of Senate Bill 1393. Under that section,
the trial court may either “strike or dismiss” the enhancement “in furtherance of justice,”
or “instead strike the additional punishment for that enhancement in the furtherance of
justice.” (§ 1385, subds. (a), (b)(1).) The trial court has not made this determination.
Nor do we believe the statements made by the trial court in denying defendant’s Romero
motion clearly indicate it will decline to strike either the enhancement or the additional
punishment for that enhancement on remand.
13
IV
Retroactivity of Senate Bill 136
Finally, as the Attorney General concedes, we must also remand the matter to the
trial court with directions to strike defendant’s prior prison term enhancements because
Senate Bill 136, which became effective January 1, 2020, and eliminates such
enhancements for defendant’s crimes, also applies retroactively to cases not yet final on
appeal.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b),
to remove the one-year enhancement for prior prison terms, except when the offense
underlying the prior prison term was a sexually violent offense. (See § 667.5, subd. (b).)
Because Senate Bill 136 reduces sentences for a crime it applies retroactively to
convictions not final on appeal absent evidence of a contrary legislative intent. (See
People v. Brown, supra, 54 Cal.4th at pp. 323-324; Estrada, supra, 63 Cal.2d at p. 745.)
Senate Bill 136 therefore applies to this case.
The offenses underlying defendant’s prior prison terms were not sexually violent
offenses. Accordingly, the prior prison term enhancements cannot stand. Defendant asks
us to remand the matter to the trial court with directions to strike the enhancements. We
shall do so. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is
stricken on review, on remand for resentencing ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing discretion in light of the changed
circumstances’ ”].)
DISPOSITION
The judgment of conviction entered against defendant is affirmed and the matter is
remanded to the trial court for a new sentencing hearing, during which the trial court
shall: (1) exercise its sentencing discretion in determining whether or not to strike the
prior serious felony conviction for purposes of imposing the previously mandatory five-
14
year enhancement under Penal Code section 667, subdivision (a); and (2) strike the prior
prison term enhancements imposed under Penal Code section 667.5, subdivision (b).
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
KRAUSE, J.
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