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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

COURTNEY ELISE VESSEY,

Defendant and Appellant.

C097680 

(Super. Ct. No. CR64380)

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. 
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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,
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that defendant was on probation when the offense occurred, and that defendant’s prior 

performance on probation had been unsatisfactory as reasons to impose the upper term. 

At the sentencing hearing on December 12, 2022, defendant testified in support of

her request for a grant of probation. Defendant was staying at a hotel with her one-yearold child who was capable of crawling. She placed foil containing remnants of drugs in a 

trash can in that room. The child found the foil and put it in her mouth. When defendant 

noticed, she removed the foil, but the child stopped moving, stopped breathing, and her 

body became stiff. Defendant took the child to her car to retrieve her Narcan and 

administered four doses. Her child survived. Defendant further admitted serving time in 

jail after she failed to appear for two felony charges that were later reduced to 

misdemeanors. This was her only prior jail term. Acknowledging probation’s 

recommendation of an upper term sentence, defendant requested a grant of probation to 

allow her to attend long-term drug treatment. 

Following the arguments of counsel, the trial court remarked on the severity of the 

child endangerment reflected in the case. The court then denied defendant’s request for 

probation and selected the upper term of six years. In so doing, the court noted 

defendant’s significant prior record spanning almost 20 years, including her two recent 

felony convictions for which she was on probation at the time of the offense. Defendant 

did not object that the trial court’s findings failed to comply with Penal Code1section 

1170’s amendments brought about by Senate Bill No. 567 (2021-2022 Reg. Sess.). 

Defendant timely appealed and did not request a certificate of probable cause. 

Appellate briefing in this matter was completed on March 15, 2023. 

1 Further undesignated statutory references are to the Penal Code. 
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DISCUSSION

I

Senate Bill No. 567

Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) altered the 

methodology for selecting an appropriate triad term. (§ 1170, subd. (b); Stats. 2021, 

ch. 731, § 1.3.) Pursuant to Senate Bill No. 567, when a judgment of imprisonment is to 

be imposed and the statute specifies three possible terms, the trial court must impose a 

term not exceeding the middle term unless there are circumstances in aggravation that 

justify the imposition of a term exceeding the middle term and the facts underlying those 

aggravating circumstances (1) have been stipulated to by the defendant, (2) have been 

found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial, or 

(3) relate to the defendant’s prior convictions and are based on a certified record of 

conviction. (§ 1170, subd. (b)(1)-(3); Stats. 2021, ch. 731, § 1.3.) 

The parties agree that remand for resentencing is required in light of these 

legislative changes. We do not agree. Here, the trial court selected an upper term 

sentence more than 11 months after Senate Bill No. 567’s effective date, and defendant 

did not object to the court’s noncompliance with the changes brought about by that 

legislation. (Stats. 2021, ch. 731, eff. Jan. 1, 2022.) Therefore, defendant forfeited this 

argument. (People v. Scott (1994) 9 Cal.4th 331, 351; People v. Flowers (2022) 

81 Cal.App.5th 680, 683-684, review granted Oct. 12, 2022, S276237.) 

Recognizing her forfeiture, defendant alternatively argues her counsel was 

ineffective for not raising the issue at the December 12, 2022 sentencing hearing.2 “[T]o 

establish a claim for ineffective assistance of counsel, a defendant must show that his or 

her counsel’s performance was deficient and that the defendant suffered prejudice as a 

2 The People’s briefing does not acknowledge this forfeiture. 
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result of such deficient performance.” (People v. Mickel (2016) 2 Cal.5th 181, 198; see 

Strickland v. Washington (1984) 466 U.S. 668, 687-692.) To demonstrate prejudice, a 

defendant must show “a reasonable probability that, but for counsel’s deficient 

performance, the outcome of the proceeding would have been different.” (Mickel, at 

p. 198.) We presume “that counsel’s actions fall within the broad range of 

reasonableness, and [we] afford ‘great deference to counsel’s tactical decisions.’ ” (Ibid.) 

As our Supreme Court has observed, “[C]ertain practical constraints make it more 

difficult to address ineffective assistance claims on direct appeal rather than in the 

context of a habeas corpus proceeding.” (People v. Mickel, supra, 2 Cal.5th at p. 198.) 

This is because “[t]he record on appeal may not explain why counsel chose to act as he or 

she did. Under those circumstances, a reviewing court has no basis on which to 

determine whether counsel had a legitimate reason for making a particular decision, or 

whether counsel’s actions or failure to take certain actions were objectively 

unreasonable.” (Ibid.) We will reverse only “if there is affirmative evidence that counsel 

had ‘ “ ‘no rational tactical purpose’ ” ’ for an act[] or omission.” (Ibid.; see People v. 

Mendoza Tello (1997) 15 Cal.4th 264, 266 [“ ‘ “[if] the record on appeal sheds no light 

on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was 

asked for an explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation,” the claim on appeal must be rejected’ ”].) A defendant thus 

bears a difficult burden when asserting an ineffective assistance claim on direct appeal. 

(Mickel, at p. 198.) 

Here, the record is silent as to defense counsel’s reasons, if any, for failing to 

object to the imposition of an upper term sentence in light of Senate Bill No. 567. 

Defendant argues there was no reasonable tactical basis for counsel’s failure to object and 

demand compliance with amended section 1170 subdivision (b)’s requirements. We 

disagree. 
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Defendant’s challenge focuses on part of the trial court’s explanation for 

imposition of the upper term, arguing defendant’s criminal history dating back nearly two 

decades was not established in compliance with the amended law. However, the 

probation report recounted defendant’s prior criminal history at length, and defendant did 

not invoke the procedure for challenging factual disputes in probation reports. (See 

§ 1203; Cal. Rules of Court, rule 4.437(c)(2), (e).) Nor does the record suggest an 

inaccuracy in the probation department’s description of the length of her criminal history

or that defense counsel failed to verify that history. (See, e.g., In re Brown (2013) 

218 Cal.App.4th 1216, 1223 [criminal defense attorney’s first duty is to investigate the 

facts and law relevant to a client’s case, including prior convictions].) Therefore, it is 

reasonable to presume defense counsel had verified that history and determined that a 

Senate Bill No. 567 objection requiring the admission of a certified criminal record 

would have merely prolonged the proceeding, but not altered its outcome. Defendant 

therefore has not established ineffective assistance. (See, e.g., People v. Price (1991) 

1 Cal.4th 324, 387 [defense “[c]ounsel does not render ineffective assistance by failing to 

make . . . objections that counsel reasonably determines would be futile”].)

II

Defendant’s Parole Term

Defendant requests we clarify the record to correct the trial court’s inaccurate 

statement at sentencing that she would be subject to parole for up to three years following 

her release from custody. We agree that the trial court misinformed defendant 

concerning her term of parole, but we disagree that this mistake requires any affirmative 

action by this court. 

California Rules of Court, rule 4.433(e)(1) requires that a judge imposing a prison 

sentence “must inform the defendant” “of the parole period provided by section 3000 to 

be served after expiration of the sentence.” Section 3000.01 governs periods of parole for 

individuals released from prison on or after July 1, 2020. (§ 3000.01, subd. (a).) It 
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limits, with exceptions not applicable here, the period of parole for an inmate serving a 

determinate term to two years. (§ 3000.01, subd. (b)(1).) Accordingly, the trial court 

misinformed defendant when it stated, “Upon her release from custody, the defendant 

will be on post custody supervision for a period of up to possibly three years.” 

However, “Parole is a statutorily mandated element of punishment, and neither the 

prosecution nor the sentencing court has authority to impose a prison sentence without 

parole or to alter the applicable period of parole established by the Legislature and 

imposed by the Board of Prison Terms.” (People v. Renfro (2004) 125 Cal.App.4th 223, 

232.) Therefore, while the trial court misinformed defendant of what it thought would be 

her parole term, we assume the court was aware that it had no authority to set a parole 

term different than that imposed by section 3000.01. (See People v. Stowell (2003) 

31 Cal.4th 1107, 1114 [“we apply the general rule ‘that a trial court is presumed to have 

been aware of and followed the applicable law’ ”].) Given this limited authority, we do 

not believe it is necessary to correct the trial court’s misadvisement concerning the 

applicable period of parole. 
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DISPOSITION

The judgment affirmed. 

/s/ 

ROBIE, Acting P. J.

We concur:

/s/ 

EARL, J.

/s/ 

McADAM, J.*

*

Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution