People v. Pollard

• Decision Date: 25 June 1991
• Docket Number: No. D011616,D011616
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 231 Cal.App.3d 823, 2 Cal.App.4th 1090 231 Cal.App.3d 823, 2 Cal.App.4th 1090, 60 USLW 2106 The PEOPLE, Plaintiff and Respondent, v. Harvey William POLLARD, Defendant and Appellant.

Page 588

282 Cal.Rptr. 588

Previously published at 231 Cal.App.3d 823, 2 Cal.App.4th 1090

231 Cal.App.3d 823, 2 Cal.App.4th 1090, 60 USLW 2106

The PEOPLE, Plaintiff and Respondent, v. Harvey William POLLARD, Defendant and Appellant.

No. D011616.

Court of Appeal, Fourth District, Division 1, California.

June 25, 1991.

Review Granted Oct. 17, 1991.

[2 Cal.App.4th 1094] George L. Schraer, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Louis R. Hanoian and Patti Ranger, Deputy Attys. Gen., for plaintiff and respondent.

BENKE, Associate Justice.

Convicted of cultivation of marijuana (HEALTH AND SAF.CODE, § 11358)¹, possession of marijuana for sale (§ 11359), possession of concentrated cannabis (§ 11357, subd. (a)) and possession of methamphetamine (§ 11377, subd. (a)), appellant Harvey William Pollard appeals, arguing (1) instructional error concerning the concept of aiding and abetting, (2) error in imposing custody as a condition of probation and (3) ineffective assistance of counsel.

I FACTS

Prosecution Evidence

In September 1988, the police executed a search warrant at appellant's San Diego home. In a small computer room next to the garage, the officers found a pouch belonging to appellant, containing a short straw, a bottle of visine and a small piece of glass. Also in the pouch were two film canisters one containing 1.7 grams of loose marijuana leaves, stems, seeds and buds and .66 grams of hashish. The second canister contained 1.65 grams of methamphetamine and two razor blades. The amount of contraband present was consistent with possession for personal use. Various drug related items were found about the house, including a copy of High Times magazine, a publication concerned with the manufacture and use of drugs.

In the backyard the officers found 14 marijuana plants growing in pots. The plants were well tended and pruned to maximize the amount of usable marijuana. On a table in the garage were scissors and marijuana debris. Trimmed marijuana leaves were found in a plastic tray. The large quantity of marijuana found indicated it was possessed for sale.

Appellant told the officers he knew about the marijuana plants but they belonged to a friend, Diane. Appellant stated he had allowed her to keep the plants on the property for approximately two months.

Defense Evidence

Appellant testified and admitted the methamphetamine and hashish were his. Appellant, however, stated the marijuana belonged to and was tended solely by Diane Forcier, a friend who sublet the garage from him and his co-tenant, Elliott Susskind. Appellant did not want Diane to bring the plants to the house but she did so anyway. Appellant asked her on several occasions to remove them and believed she was going to do so. The plants were at the house approximately two months before the search.

II DISCUSSION

A. Ineffective Assistance of Counsel

The pivotal issue raised in this case is whether the trial court erred in denying a motion for new trial based upon a claim of ineffective assistance of counsel. Specifically, appellant asserts trial counsel provided prejudicially defective representation with regard to plea bargaining by failing to correctly convey the People's offers and by providing erroneous legal advice that led appellant, to his detriment, to reject the People's offer. ²

1. Background

Following the verdicts, appellant retained new counsel who filed a lengthy motion for new trial. Among other issues, appellant asserted trial counsel had failed to adequately represent him during the plea bargaining process.

Attached to the motion for new trial were several declarations. Trial counsel's declaration stated that it was his understanding the People's offer was that appellant could plead to either count one (cultivation of marijuana) or count two (possession of marijuana for sale) and the People would not oppose local incarceration. Counsel believed appellant was unwilling to plead to a felony charge. Counsel tried to obtain a misdemeanor disposition but when it became clear the prosecution would not agree, counsel advised appellant to go to trial. Counsel stated he did so (1) because he believed the chance for conviction on count two (possession of marijuana for sale) was small, (2) because he believed the trial court could consider the trial a suitability hearing and that appellant could be diverted if convicted of all counts except count two, (3) because he believed all counts could be reduced to misdemeanors after probation and so it made little difference if appellant were convicted of one or four felonies, and finally (4) counsel was uncomfortable advising appellant to enter a guilty plea to either counts one or two because appellant claimed he was not guilty of those offenses.

Appellant's new counsel attached a declaration to the motion for new trial. Her declaration stated she spoke with the prosecutor concerning pretrial negotiations. The prosecutor stated the offer made to defense counsel was for appellant to plead to count one (cultivation of marijuana) and the People would not oppose local time. The prosecutor also stated that based on a review of the file it appeared another prosecutor also offered a reduction to a misdemeanor at the conclusion of 18 months of probation.

Appellant stated in his declaration the only offer communicated by counsel was that the People would accept a plea of guilty to counts one and two and would dismiss counts three and four (the possession counts). Counsel did not tell him the People would accept a plea to count one with local time and had agreed to reduce the charge to a misdemeanor at the end of 18 months of probation. Appellant stated at first he was unwilling to enter a guilty plea to two felonies. Eventually, however, appellant told counsel he was willing to plead guilty to counts one and two (cultivation and possession of marijuana for sale). Counsel had advised appellant to go to trial since the charged felonies could eventually be reduced to misdemeanors. Counsel also stated if appellant were acquitted of count two (possession of marijuana for sale), the court would still be able to grant him diversion. Counsel was confident appellant would not be convicted of counts one and two and was particularly confident of acquittal on the possession for sale charge in count two. It was counsel's expectation that once the jury heard Diane Forcier "take the Fifth Amendment" they would realize appellant had no connection to the plants.

Appellant asserted his decision to go to trial was based on counsel's statement of the People's offer to plead to two counts, his understanding Forcier would assert her right to silence before the jury, and his further understanding he could still be diverted and that any felony convictions could be reduced to misdemeanors.

While having some misgivings about appellant's representation, the trial court denied the motion for new trial on the ineffective assistance ground. The basis for the court's denial of the motion was, at least in part, that appellant had received a complete and fair trial. The trial court granted a new trial as to count two (possession of marijuana for sale) on other grounds.

2. Effective Assistance of Counsel and Plea Bargaining

A criminal defendant has a constitutional right to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674; People v. Ledesma (1987) 43 Cal.3d 171, 215-218, 233 Cal.Rptr. 404, 729 P.2d 839.) Among the responsibilities of counsel is "to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution." (Strickland v. Washington, supra, 466 U.S. at p. 688, 104 S.Ct. at p. 2065.) This responsibility extends to plea bargaining. Before entering a plea a defendant is " 'entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.' (Von Moltke v. Gillies (1948) 332 U.S. 708, 721 [68 S.Ct. 316, 322, 92 L.Ed. 309].)" (In re Williams (1969) 1 Cal.3d 168, 175, 81 Cal.Rptr. 784, 460 P.2d 984, fn. omitted.)

When a defendant enters a plea of guilty as the result of ineffective assistance, courts uniformly conclude reversal is required. (See e.g., Hill v. Lockhart (1985) 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203; People v. McCary (1985) 166 Cal.App.3d 1, 7, 212 Cal.Rptr. 114.) A more difficult theoretical and practical question arises when ineffective assistance results in a not guilty plea. If ineffective assistance leads to the rejection of a plea bargain, and a result after trial more onerous to the defendant than would have occurred under the offered plea bargain, the issues are whether the defendant has been harmed in a constitutionally significant manner and if so, what is the appropriate remedy.

The single California case on point, People v. Brown (1986) 177 Cal.App.3d 537, 544-557, 223 Cal.Rptr. 66 (Brown ), concludes the defendant has suffered such harm. The vast majority of courts which have considered the question agree. (People v. Alexander (1987) 136 Misc.2d 573, 518 N.Y.S.2d 872, 877-880 (Sup.1987); United States ex rel. Caruso v. Zelinsky (3rd Cir.1982) 689 F.2d 435, 437-439; Com. v. Napper (1978) 254 Pa.Super. 54, 385 A.2d 521, 524; Turner v. State of Tenn. (M.D.Tenn.1987) 664 F.Supp. 1113, 1118-1122; Turner v. State of Tenn. (6th Cir.1988) 858 F.2d 1201, 1205-1207; Turner v. State of Tenn. (M.D.Tenn.1989) 726 F.Supp. 1113, 1116-1118; Johnson v. Duckworth (7th Cir.1986) 793 F.2d 898, 900-902; State v. Simmons (1983) 65 N.C.App. 294, 309 S.E.2d 493, 497-498; State v. Ludwig (1985) 124 Wis.2d 600, 369 N.W.2d 722, 725-726; Lloyd v. State (1988) 258...