Metropolitan News-Enterprise


Tuesday, December 28, 2010


Page 3


C.A. Allows Plea Withdrawal Over Promise of Hearing to Return Drugs


By STEVEN M. ELLIS, Staff Writer


The Third District Court of Appeal ruled yesterday that a Siskyou County woman could withdraw her plea to marijuana possession after prosecutors erroneously promised she could seek return of her marijuana.

A panel said in an unpublished opinion that Kimberly Renee Olson’s no contest plea was “induced by an illusory promise” given a state law mandating destruction of the drugs upon her conviction.

Olson, who claimed she lawfully possessed medical marijuana, was convicted of felony cultivation at a 2005 trial after police claimed she had more than she medically needed. Police found six marijuana plants, 15 seedlings, bottles of seeds and approximately four ounces of processed marijuana in her home.

She pleaded no contest to a misdemeanor possession charge while the Court of Appeal was considering her habeas corpus claim that her trial counsel was ineffective by failing to seek to introduce witness testimony about the medical necessity of the amount of marijuana she had.

Under a deal with prosecutors, Olson and co-defendant Peter Harrell each agreed to plead no contest to misdemeanor possession and face no fines, fees or probation if the appellate court accepted her claim and granted a new trial.

The deal resolved further possession charges from a 2007 probation search that revealed Olson was still possessing marijuana she said was medicinal. It also provided that Olson and Harrell could move for return of their property.

In the event that the Court of Appeal rejected a trial court’s conclusion that the witnesses were critical and that their testimony likely would have resulted in a contrary verdict, and reinstated Olson’s felony conviction, the deal provided for Harrell to plead guilty to misdemeanor possession and for dismissal of charges against both from the 2007 search.

The appellate court affirmed a Siskyou Superior Court judge’s grant of habeas corpus in 2009, and Olson moved for return of her marijuana after she and Harrell entered no contest pleas. Olson pointed to provisions of the Penal Code dealing with the suppression of evidence and return of property, but prosecutors opposed the motion, citing Health and Safety Code Sec. 11473(a).

That statute mandates destruction of seized drugs upon conviction. A trial judge initially granted return of Olson’s property, but agreed with prosecutors on reconsideration and ordered it destroyed.

When Olson sought to withdraw her plea, the trial court denied the motion, finding that although she and Harrell were “interested in the return of their property,” it was not a “term of the plea.” However, Justice Tani Cantil-Sakauye—who was ceremonially sworn in as California’s 28th chief justice Dec. 3, and is scheduled to take office next Monday—wrote for the Third District that Olson was entitled to withdraw her plea.

Commenting that implementation of a particular term should not be contingent on others’ assessment of its value to a defendant, the justice explained:

“[T]he 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….

“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.”

Presiding Justice Vance W. Raye, who succeeded former Presiding Justice Arthur Scotland Dec. 10, and Justice Harry Hull joined Cantil-Sakauye in her opinion.

The case is People v. Olson, C064037.


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