(Super. Ct. No. MCYKCRF030002428004)
The opinion of the court was delivered by: Cantil-sakauye, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...