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The People v. Kimberly Renee Olson


December 27, 2010


(Super. Ct. No. MCYKCRF030002428004)

The opinion of the court was delivered by: Cantil-sakauye, J.

P. v. Olson



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Kimberly Renee Olson appeals the denial of her motion to withdraw her plea of no contest to possession of marijuana in violation of Health and Safety Code section 11357, subdivision (c).*fn1 Defendant contends her plea was induced by an illusory promise that after her plea she could litigate the merits of a motion for return of her property, including the seized marijuana that she claimed she lawfully possessed pursuant to a doctor's prescription for medical marijuana. Section 11473, subdivision (a), which automatically requires the destruction of the property upon conviction, went unmentioned by the court and counsel.*fn2 Defendant claims the failure of the trial court to inform her at the time of her plea of the statute that required the destruction of her property also entitles her to withdraw her plea. She claims ineffective assistance of trial counsel because her counsel told her that her plea allowed her to still litigate the merits of the return of her property. Finding merit in defendant's first claim, we need not reach her other claims. We shall reverse the order denying her motion to withdraw her plea and direct the trial court to enter a new order granting it.


We find it useful to provide the factual and procedural background of this case in some detail to provide the context for defendant's motion to withdraw her plea.

A September 2003 investigation of the cultivation of 13 marijuana plants in Fort Jones revealed a connection with defendant.*fn3 A deputy sheriff contacted defendant at her mobile home. She told him that she smoked about an ounce a week under a prescription for medical marijuana, which allowed her to cultivate about 10 plants. There were plants growing on the side of her home, but the deputy thought they looked bug-infested and were not thriving. Defendant admitted that she had someone growing additional plants for her elsewhere, but she did not know the exact location. She provided the name of her prescribing physician.

A detective arrived to question defendant. He thought the plants by her home were in "fairly decent" shape. Defendant told him that she had given the Fort Jones cultivator 10 to 15 starter plants to grow and process for her. She told the detective she smoked one or two marijuana cigarettes a day and had some processed marijuana in the house for hand-rolling them. The detective estimated the weight of the cigarette she gave him as about 0.5 grams. Defendant gave him a copy of her prescription from her doctor.

Based on his experience, the detective concluded defendant had an excessive amount of marijuana for her medical needs and decided to arrest her and confiscate her plants. In a search of the home, the detective found six plants in a bedroom closet, 15 seedlings in an armoire, a kitchen drawer full of bottles of seeds, and about four ounces of processed marijuana.

By information filed in January 2004, defendant was charged with cultivating marijuana, possessing marijuana for sale, selling marijuana, and resisting arrest. She asserted a medical marijuana defense to the charges. In 2005, a jury found defendant guilty of cultivation, but acquitted her of the other offenses. The trial court suspended imposition of sentence and placed her on five years' probation.

Defendant appealed her conviction. Other than correcting sentencing issues, we affirmed the judgment in 2006. (People v. Olson (Oct. 10, 2006, C051654) [nonpub. opn.].) In our opinion, we rejected defendant's challenge to the exclusion of testimony from two witnesses on the ground that her trial attorney had failed to make an offer of proof adequate enough for us to review the trial court's exercise of its discretion or the prejudice resulting from any error. We expanded, however, the scope of her appellate attorney's appointment to include the preparation of a petition for a writ of habeas corpus for filing in propria persona in the trial court.

At the beginning of 2007, defendant filed a petition for writ of habeas corpus in the trial court. The trial court summarily denied the petition without a hearing, finding defendant had not made a prima facie showing of entitlement to relief. Defendant then petitioned this court. We issued an order to show cause, returnable before the trial court. (In re Kimberly R. Olson (Aug. 6, 2007, C055300) [OSC].)

At about the same time as we issued the order to show cause, law enforcement officials conducted a probation search of defendant's residence and confiscated marijuana and items used in the cultivation and processing of marijuana. Again, defendant claimed the marijuana was medicinal marijuana. The People initiated a violation of probation charge against defendant, alleging she was growing too much marijuana for her recommendation. Ultimately, this resulted in another criminal case being filed against defendant (case No. 07-2113).

Meanwhile, defendant's habeas matter in her 2003 case proceeded with the parties agreeing to submit the issue on the declarations of two witnesses in lieu of an evidentiary hearing. In an April 2008 order, the trial court concluded that defense counsel's failure to make an adequate offer of proof was a significant departure from objective standards for competent representation. Furthermore, where "[t]he gravamen of Petitioner's defense was that the marijuana . . . was a medically necessary quantity," "the testimony of the two witnesses was of such [a] critical nature" that "its admission would have likely resulted in a contrary verdict in the case." The trial court granted defendant's writ of habeas corpus, set aside her previous 2003 conviction for cultivation, and ordered a new trial. The People appealed the trial court's grant of defendant's writ of habeas corpus.

While the appeal was pending, the People reached a plea agreement with defendant and her co-defendant Peter Harrell. In December 2008, the parties memorialized the agreement before the trial court. The agreement included alternate resolutions depending on whether this court affirmed or reversed the trial court's order granting defendant a new trial. Counsel for defendant told the court:

"The first scenario of the resolution would be if the appellate court upholds Judge Kosel's ruling granting Ms. Olson a new trial. If that is the case, when we return to court, Ms. Olson would be prepared to admit to a violation of Health and Safety Code section 11357, subsection (c), as a misdemeanor, on condition that there be no fine, jail or probation.

"Mr. Harrell under that same scenario in his '06 case would be prepared to admit to a violation of Health and Safety Code section 11357(c) as a misdemeanor, no jail, probation, or fine. Same with Ms. Olson.

"The new case [the '07 case] against both of them would be dismissed.

"In the event that the appellate court reinstates Ms. Olson's conviction, felony conviction, Mr. Harrell in his 2006 case, the old case, would then admit to a violation of 11357, subsection (c), as a misdemeanor, no jail, fine or probation and the '07 case would be dismissed against both of them.

"However, the underlying facts of the '07 case could be subject to a violation of probation for Ms. Olson's felony reinstated conviction in which she would be entitled to a hearing on the--whether or not she violated probation; that and in the event her conviction is reinstated, the '07 case against both defendants would be dismissed.

"All of the property that is currently subject to an order of nondestruction would remain in effect. And if Ms. Olson or Mr. Harrell wished to litigate this, once the pleas are over and done with, as far as return of any property, they would have that right to do so.

"In conjunction with this alternative plea, your Honor, we are here for preliminary hearing and Mowrer [sic][*fn4 ] motions in two cases for Mr. Harrell, at least one case for Ms. Olson; assuming that this court would agree there is a stay on the '03, that we would not be having a Mowrer [sic] hearing on the '03 case.

"Both defendants understand their rights to the preliminary hearing and their trial rights . . . .

"In conjunction with this plea, they--at this time they understand all of those rights and would be prepared to go forward with the plea under one of those alternative deals in the future once the appellate court has made its ruling." (Italics added.)

The trial court asked each of the defendants if they understood the plea agreement as set forth. Co-defendant Harrell spoke up:

"Actually, your Honor, I would like to restate it in my own words and make sure that we are all [on] the same page, if I might, so that I can make an intelligent waiver.

"My understanding of the plea agreement is that we agree to waive time today and that we are giving up our immediate rights to our preliminary hearings and other hearings that have been scheduled; that what we are doing this for is because we are waiting for the appellate court to make a decision on the People's appeal of the writ granted Ms. Olson in the 2003 case.

"In the event that the appellate court rules against Ms. Olson and reinstates her felony conviction, I will be required--I'm Peter Harrell, H-A-R-R-E-L-L--I will be required to plea to a misdemeanor possession of marijuana with no fine, no fees, no probation and that will end my involvement in the--what is my 2006 case.

"In return, the People will dismiss all of the pending charges in 2006 and will also dismiss the case against me in the 2007 case.

"In the event that Ms. Olson's habeas is upheld and her conviction is stricken, in that event, she has to make a plea to a misdemeanor possession but my terms are the same.

"I will still have to plead to a misdemeanor possession of marijuana with no fines, fees or probation and the rest of the charges in the '06 case will go away for me and I will not face any charges in the '07 case.

"Also, my understanding is that the existing orders of nondestruction of property in both the 2006 and the 2007 cases which were previously made on my behalf will remain in effect pending additional motions by either of us." (Italics added.)

Both defense counsel and the prosecutor concurred that this was an accurate statement of the agreement.

By opinion filed in May 2009, this court affirmed the trial court's grant of defendant's writ of habeas corpus. (In re Kimberly Renee Olson (May 20, 2009, C058669) [nonpub. opn.].)

In June 2009, the parties returned to the trial court, but before a different judge. Using a transcript of the December 2008 proceedings, the parties undertook disposition of the 2003 and 2007 cases pursuant to the plea agreement. Defendant's counsel informed the court that in light of this court's affirmance, the "first scenario" of the agreement would be applicable. Counsel clarified that defendant's and Harrell's pleas would be no contest pursuant to People v. West.*fn5 Mr. Harrell's counsel then added that there would be "no jail, probation or fine or fees" and that the 2007 case would be dismissed in its entirety. The court turned to defendant and Mr. Harrell to confirm they had an understanding and opportunity to review the offer. Harrel again spoke, summarizing the plea agreement as follows:

"People v. West plea to a misdemeanor, possession charge [in] return for dismissal of all other charges in both cases with the potential for filing return of property on the merits. The People v. West plea, while it's treated as a guilty plea by the court for sentencing purposes, the sentencing has been determined by the parties to be no fines, no fees, no probation, no jail.

"And, the only thing that we have, we do have some pending return of property stuff. I'm going to have to join in that. We'll have to preserve all of the evidence and continue those out to be taken care of at a later date. So those won't be resolved. I understand that.

"And that should take care of business." (Italics added.)

After some further discussion with Harrell, the court proceeded to take defendant's no contest plea. Based on her plea, the court found defendant guilty of misdemeanor possession of marijuana in violation of section 11357(c). The court imposed no jail time, no fine, and no probationary period, but did impose a $110 restitution fine and a $20 court security fee. The court granted the prosecution's motion to dismiss the remaining counts of the 2003 case against the defendant and then granted the motion to dismiss the 2007 case "with the exception of preserving the [Penal Code section] 1538.5 issue[.]" The court continued in effect the order in the 2003 case requiring the preservation of the evidence that was seized. Defendant's counsel indicated a motion for return of property would be made in that case as well. The court set an evidentiary hearing in July 2009, for the motions for return of property.

Defendant filed a motion for return of her property based on the provisions of Penal Code sections 1538.5, 1539, and 1540 dealing with the suppression of evidence and return of property. Defendant also cited Penal Code sections 1417.5 and 1417.6 as the statutory grounds for her motion.

The prosecutor submitted the matter on defendant's moving papers and the matter was continued to allow notice to the sheriff's department, which held the property. County Counsel subsequently filed opposition to defendant's motion on behalf of the Siskiyou County Sheriff. The opposition, among other things, noted the applicability of section 11473(a) to the property held in connection with defendant's 2003 case.

The trial court initially granted defendant's motion in her 2003 case, ordering the return of all "nonorganic" property seized and an amount of marijuana as prescribed to defendant pursuant to Proposition 215. The District Attorney filed a motion for reconsideration and County Counsel filed a motion to vacate the order as void.

The trial court granted reconsideration, particularly focusing on section 11473(a) as requiring the destruction of all the property seized in the 2003 case because defendant had been convicted on the basis of her plea. The court discussed other statutory provisions and relevant case law as governing the property seized in defendant's 2007 case. Defendant indicated there was "a problem now. The plea in the case was structured such that it was a West plea to possession of marijuana. It was specifically contemplated that the property would be--there would be a return of property motion, not that there would just be, well, there's a conviction so we are going to order it destroyed, so I think we are going to need to contemplate a withdrawal of plea . . . ."

The court ordered the property to be destroyed, but stayed its order pending the next court date, anticipating defendant's motion to withdraw her plea.

Defendant filed a motion to withdraw her plea contending (1) the court failed to properly advise her of the consequences of her plea, (2) her plea was not voluntarily, knowingly, and intelligently entered, and (3) there had been a breach of her plea agreement.

The trial court denied defendant's motion to withdraw her plea, finding that although defendant and Harrell were "interested in the return of their property," it was not a "term of the plea." The court found that the only terms of the plea were "no probation, no fines and no fees."*fn6


Defendant's Plea Was Induced By An Illusory Promise Entitling Defendant To Withdraw Her Plea

Our Supreme Court has explained that, "'[p]lea negotiations and agreements are an accepted and "integral component of the criminal justice system and essential to the expeditious and fair administration of our courts." [Citations.] Plea agreements benefit that system by promoting speed, economy, and the finality of judgments. [Citations.]' [Citation.] A plea agreement 'is a tripartite agreement which requires the consent of the defendant, the People and the court.' [Citations.] 'Acceptance of the agreement binds the court and the parties to the agreement.'" (People v. Feyrer (2010) 48 Cal.4th 426, 436-437.)

When a guilty or no contest plea is entered by the defendant in exchange for specified benefits, both parties, including the state, must abide by the terms of the agreement. (People v. Walker (1991) 54 Cal.3d 1013, 1024.) "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." (Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 433].) "Failure of the state to honor the agreement violates the defendant's due process rights for which the defendant is entitled to some remedy." (People v. Lopez (1998) 66 Cal.App.4th 615, 636.) However, "[t]his does not mean that any deviation from the terms of the agreement is constitutionally impermissible." (People v. Walker, supra, at p. 1024.) "[T]he variance must be 'significant' in the context of the plea bargain as a whole to violate the defendant's rights." (Ibid.) A defendant is entitled to withdraw his or her plea when it has been "'"induced by misrepresentations of a fundamental nature" such as a bargain which is beyond the power of the trial court[.]'" (People v. Hollins (1993) 15 Cal.App.4th 567, 574; see also People v. DeVaughn (1977) 18 Cal.3d 889, 896; People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821.)

Defendant claims a right to bring a motion for return of her property, which would be decided on the merits of her claim of possession and cultivation of the marijuana pursuant to her medical prescription, induced her plea and that the trial court erred in finding it was not a term of her plea. She contends she is entitled to withdraw her plea. We agree.

We interpret a negotiated plea agreement according to general contract principles. (People v. Feyrer, supra, 48 Cal.4th at p. 437; People v. Shelton (2006) 37 Cal.4th 759, 767.) "'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." [Citations.]' [Citation.] 'The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]' [Citations.]" (People v. Shelton, supra, at p. 767.)

Applying these principles, we agree with defendant that the right to bring a meaningful motion for return of property, which at least had a chance of being resolved in defendant's favor, was a significant term of the plea bargain. We have quoted at length the parties' expression of the terms of the plea agreement. Contrary to the finding of the trial court, "no probation, no fines and no fees" were not the only terms of the plea agreement. The agreement also contemplated no jail time. The plea also required the dismissal of the 2007 case against defendant and her co-defendant Harrell. And, the right to bring a motion for return of property was stated multiple times, both by defendant's counsel and more explicitly by Harrell as part of their statement of the agreement. The right to litigate a motion for return of their property was stated as a term of the agreement at the original December 2008 hearing, and it was repeated at the time of entry of their pleas in June 2009.

Moreover, a broader view of defendant's position throughout the criminal proceedings against her reflects she has been consistently seeking vindication of her claim that she lawfully possessed medical marijuana. Her no contest plea pursuant to West fits her assertion that she believed she was preserving her right to have a hearing on the merits of her claim through the procedural vehicle of a motion for return of her property, while resolving the criminal case that had been pending against her for almost six years. While there was no promise in the plea agreement that she would be ultimately successful, it was clearly contemplated as a fundamental part of the plea agreement that she would have a meaningful opportunity to litigate the issue before the court.

Unfortunately, neither the parties nor the court was apparently aware, at the time of the 2009 plea negotiation or defendant's plea, of the applicability of section 11473(a). However, once defendant entered her plea of no contest and was convicted by the court of misdemeanor possession of marijuana in violation of section 11357(c) in her 2003 case, the provisions of section 11473(a) mandated the destruction of the property seized in connection with that case. Defendant was not entitled to an evidentiary hearing on the matter. She had no chance of persuading the court to return her property. Thus, the promise that she could file a motion for return of her property was illusory.

"A violation of a plea bargain is not subject to harmless error analysis. A court may not impose punishment significantly greater than that bargained for by finding the defendant would have agreed to the greater punishment had it been made a part of the plea offer. 'Because a court can only speculate why a defendant would negotiate for a particular term of a bargain, implementation should not be contingent on others' assessment of the value of the term to defendant. [para.] . . . [para.] Moreover, the concept of harmless error only addresses whether the defendant is prejudiced by the error. However, in the context of a broken plea agreement, there is more at stake than the liberty of the defendant or the length of his term. "At stake is the honor of the government[,] public confidence in the fair administration of justice, and the efficient administration of justice . . . ."' [Citation.]" (People v. Walker, supra, 54 Cal.3d at p. 1026.)

Defendant is entitled to withdraw her plea. However, defendant's withdrawal of her plea, in return for which the 2007 case was dismissed, entitles the prosecution to reinstatement of the charges in the 2007 case as well as the 2003 case.


The order denying defendant's motion to withdraw her plea is reversed and the matter is remanded to the trial court with directions to enter a new order granting defendant's motion. Both the 2003 and the 2007 case shall be reinstated against defendant.

We concur:


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