People v. Vessey CA3

Filed 5/9/23 P. v. Vessey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Colusa) ----

THE PEOPLE, C097680

Plaintiff and Respondent, (Super. Ct. No. CR64380)

v.

COURTNEY ELISE VESSEY,

Defendant and Appellant.

Defendant Courtney Elise Vessey appeals an upper term prison sentence imposed following her no contest plea to felony child endangerment. Defendant complains: (1) the trial court’s noncompliance with the changes brought about by Senate Bill No. 567 (2021-2022 Reg. Sess.) requires reversal for resentencing; (2) her counsel was ineffective for not raising Senate Bill No. 567 at the December 12, 2022 sentencing hearing; and (3) we must clarify the record by correcting the trial court’s inaccurate statement that defendant would be subject to parole for three years following her release from custody.

1

Because defendant forfeited her challenge to imposition of the upper term and has not shown defense counsel rendered ineffective assistance, we cannot accept the parties’ agreement to remand for resentencing. Moreover, we decline defendant’s invitation to modify the trial court’s inaccurate advisement of the future parole term and will instead affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND The People’s information filed October 5, 2022, alleged defendant committed child endangerment with a great bodily injury of a child enhancement (count I), possession of a controlled substance (counts II & III), and possession of drug paraphernalia (count IV). On October 31, 2022, defendant resolved the matter through an open plea of no contest to count I. In exchange, the remaining counts and the enhancement were dismissed. The stipulated factual basis for the plea was the preplea probation report. According to the report, defendant told responding authorities her infant daughter may have ingested fentanyl from a piece of foil later recovered from defendant’s pocket following her detention. The incident occurred in a hotel room paid for by a third party who regularly paid defendant for sex and was sleeping when the incident occurred. A search of the hotel room’s bathroom revealed small amounts of fentanyl, methamphetamine, and marijuana, as well as a digital scale, a used methamphetamine pipe, two loaded syringes containing blood and methamphetamine, and other paraphernalia related to narcotics. Defendant told probation her daughter had been born on drugs, but that she had successfully closed her child protective services case before her daughter was six months old. If provided a second chance, defendant intended to attend inpatient treatment. The preplea probation report recommended against a grant of probation, instead arguing in favor of an upper term prison sentence. The report identified the victim’s vulnerability, that defendant’s convictions were numerous and increasing in seriousness,