PEOPLE v. POLLARD

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

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

No. D011616.

Decided: June 25, 1991

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.

Convicted of cultivation of marijuana (Health and Saf.Code,1 § 11358), 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

DISCUSSIONA. 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 Ga. 645, 373 S.E.2d 1, 2–3;  Com. v. Copeland (1988) 381 Pa.Super. 382, 554 A.2d 54, 59–61;  Ex Parte Wilson (Tex.Cr.App.1987) 724 S.W.2d 72, 73–74;  Lewandowski v. Makel (W.D.Mich.1990) 754 F.Supp. 1142, 1147–1148;  Larson v. State (1988) 104 Nev. 691, 766 P.2d 261, 262–263;  Barentine v. U.S. (W.D.N.C.1990) 728 F.Supp. 1241, 1251;  State v. James (1987) 48 Wash.App. 353, 739 P.2d 1161, 1165–1167;  Tucker v. Holland (W.Va.1985) 327 S.E.2d 388, 390–395;  Rasmussen v. State (1983) 280 Ark. 472, 658 S.W.2d 867, 868;  Lyles v. State (1978) 178 Ind.App. 398, 382 N.E.2d 991, 993–994;  Williams v. Arn (N.D.Ohio 1986) 654 F.Supp. 226, 233–237;  see also 8 A.L.R.4th 660.)

The conclusion that ineffective assistance of counsel, leading to the rejection of an offered plea bargain, results in constitutionally significant harm requiring a remedy is not without dissent.   In Rasmussen v. State, supra, 658 S.W.2d at page 869, the dissent of two justices of the Arkansas Supreme Court stated the crucial issue was whether the defendant had received a fair trial.   They commented:  “Although ineffective assistance of counsel can be predicated on the failure to render competent advice as to a plea of guilty, [citation], once a trial has occurred, the standard for reviewing the effectiveness of counsel is whether the petitioner was afforded a fair trial.  [Citations.]   The mere fact that a petitioner denies having been apprised of a plea bargain should not be allowed to obscure the ultimate fact that the petitioner was accorded a fair trial, found guilty and sentenced.   Since the case was affirmed on appeal and we find no cause to grant postconviction relief on grounds related to the trial, it is incongruous that the jury's valid finding of guilt or the sentenced imposed should be placed in question because a pre-trial plea bargain may not have been communicated.”  (See also State v. Kraus (Iowa 1986) 397 N.W.2d 671, 674–675.)   This position is specifically rejected in U.S. v. Rodriguez (1st Cir.1991) 929 F.2d 747, 753, footnote 1, and in Turner v. State of Tenn., supra, 664 F.Supp. at pages 1119–1120.)

Based upon the authority of People v. Brown, supra, 177 Cal.App.3d 537, 223 Cal.Rptr. 66, and the body of case law from other jurisdictions, we conclude ineffective assistance of counsel resulting in the rejection of an offered plea bargain does constitutionally significant harm to the defendant and a remedy is required.   Plea bargaining is an important and accepted part of the criminal justice system.   The information and advice given by counsel during the bargaining stage is crucial and indeed is often the direct determinate of a defendant's sentence.   It is meaningless to require a defendant be represented during this period and then hold that ineffective assistance, however damaging to the bargaining process, is rendered insignificant by the fact of conviction at trial.  (Id. at pp. 546–549, 223 Cal.Rptr. 66;  Turner v. State of Tenn., supra, 664 F.Supp. at pp. 1119–1120;  see also People v. Smith (1971) 22 Cal.App.3d 25, 30–31, 99 Cal.Rptr. 171 [trial court's improper refusal to consider plea bargain resulted in reversal after conviction at trial].)

Having so decided, the most difficult issues remain.   How is the adequacy of counsel determined and what is the remedy for ineffective assistance?

In assessing the adequacy of counsel during plea bargaining, the court in Brown looked to the analysis of ineffective assistance defined in People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859, and People v. Fosselman (1983) 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144.   The court noted, however, that because those cases dealt with ineffective assistance either in the preparation for trial or at trial they did not provide a perfect model for the review of ineffective assistance in the unique setting of the plea bargaining context.  (People v. Brown, supra, 177 Cal.App.3d at pp. 550–552, 223 Cal.Rptr. 66.)

The Brown court's definition of a test of inadequate representation was driven to an extent by the unique nature of the ineffectiveness claimed.   In the usual case, and in the present case, the claimed defect is the failure to convey an offer to the defendant or the giving of erroneous legal advice concerning the consequences of accepting or rejecting the offer.   In Brown, however, the claimed inadequacy of counsel was the failure to request correction of a defective pre-plea report.   The uncorrected report made impossible an offer acceptable to the defendant and he was eventually convicted at trial.  (177 Cal.App.3d at pp. 542–544, 223 Cal.Rptr. 66.)

Given this unique problem, the court in Brown was particularly concerned with the uncertainty of the plea negotiation process.   The court stated:  “Since it is always impossible to know whether counsel's efforts at securing a plea bargain for the client would ultimately result in the accepted plea, the proper focus of our inquiry is whether counsel's failings resulted in withdrawal of the opportunity for the defendant to present a plea bargain to the court for consideration.

“Thus viewed, the error is, to a degree, like the withdrawal of a potentially meritorious defense.   In such circumstances, it is not necessary that the defense be one which ‘would result inexorably [or probably] in a defendant's acquittal.’  [Citation.]   The error occurs because the ‘defendant is deprived of the opportunity to adjudicate a defense which may succeed.’  [Citations.]”   (Id. at pp. 552–553, 223 Cal.Rptr. 66.)

Having so reasoned, the court stated:  “[A]n appropriate test of prejudice in cases where it is claimed that counsel has inadequately pursued or perfected plea negotiations is to determine whether, absent counsel's failings, it is reasonably probable defendant would have had the opportunity to present a beneficial plea bargain to the court for approval or rejection.

“Under this test, it is defendant's burden to establish that counsel's acts or omissions fell below the standard of reasonable diligence and that, absent such failing, it is reasonably probable a bargain subject to the court's discretion, and which defendant was prepared to accept, would have been available for submission to the court.   Defendant must also establish that the terms of the plea bargain are favorable when compared to the actual result of the proceedings.”  (People v. Brown, supra, 177 Cal.App.3d at pp. 554–555, 223 Cal.Rptr. 66, fns. omitted.)

While helpful, the analysis in Brown is more complex than we believe is necessary for review of the comparatively simple claim that counsel was inadequate for failing to convey an offer or for providing erroneous advice leading to the rejection of an offer.   We note that most courts dealing with the issue have taken their analytical lead from Strickland v. Washington, supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (decided after Brown ), and its discussion of ineffective assistance.

 To establish ineffective assistance of counsel under Strickland, appellant must show by a preponderance of evidence his representation was deficient.   Representation is deficient when it falls below an objective standard of reasonableness under prevailing professional norms.  (466 U.S. at p. 688, 104 S.Ct. at p. 2064;  People v. Ledesma, supra, 43 Cal.3d at pp. 215–218, 233 Cal.Rptr. 404, 729 P.2d 839.)   To substantiate a claim of prejudice, appellant must also affirmatively demonstrate that it is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  (Strickland v. Washington, supra, 466 U.S. at pp. 693–694, 104 S.Ct. at pp. 2067–2068;  People v. Ledesma, supra, 43 Cal.3d at pp. 217–218, 233 Cal.Rptr. 404, 729 P.2d 839.)

Because it deals with ineffectiveness at trial, however, Strickland is an imperfect analog for a system of reviewing claims of inadequate representation in the rejected plea context.   Still, with minor adjustments the Strickland approach is useful.

 We conclude that when the defendant establishes by a preponderance of the evidence that counsel failed to convey an offer from the People, or when the defendant establishes counsel has failed to advise or has misstated some aspect of the law important to the intelligent evaluation of the offer, deficient representation has been demonstrated.  (See State v. James, supra, 739 P.2d at p. 1167;  Turner v. State of Tenn., supra, 664 F.Supp. at pp. 1121–1122;  Lewandowski v. Makel, supra, 754 F.Supp. at pp. 1147–1148;  People v. Alexander, supra, 518 N.Y.S.2d at pp. 878–880.)

To establish the additional requirement of prejudice, the defendant must show that but for the failure to convey the offer or to misadvise concerning the law, it is reasonably probable the defendant would have accepted the offer.  (See State v. James, supra, 739 P.2d at p. 1167;  Turner v. State of Tenn., supra, 664 F.Supp. at pp. 1121–1122;  Lewandowski v. Makel, supra, 754 F.Supp. at p. 1148.)

We caution there are obvious pitfalls in this analysis.   In many cases ineffective assistance of counsel in the context of plea bargaining will center on private communications between attorney and client that may have occurred long before their significance is apparent.   Establishing the nature of advice given and information conveyed may be difficult.   In addition we recognize that a defendant who has rejected an offer only to be convicted and sentenced on the charged offenses has a strong motive to claim ineffective assistance in the communication of plea offers or advice given.  (See Turner v. State of Tenn., supra, 664 F.Supp. at p. 1121.)   Sadly, a small percentage of attorneys may abet such efforts.  (See Com. v. Napper, supra, 385 A.2d at p. 522.)   Less cynically, it is also clear that given the legal complexity of the decision to accept an offered plea, misunderstandings may develop between attorney and client that are not the result of attorney incompetence.   In the final analysis, however, the difficulty of these questions is no greater than others faced by our trial courts and will yield to good advocacy, judicial wisdom and the presumptions of competence and regularity.

 Having discussed the standard for the determination of ineffective assistance of counsel, it is next necessary to address the more difficult issue of remedy.   Generally in criminal cases, remedy is not a problem.   The court simply grants to appellant that which he was denied, for example, a fair trial.   When ineffective assistance leads to a guilty plea, the remedy is to allow withdrawal of the plea.   However, when ineffective assistance results in the rejection of a plea offer more favorable than the result achieved at trial, the issue of remedy becomes complex.

In Brown it was unnecessary to resolve the issue of remedy because the court found the defendant had not been prejudiced by counsel's ineffective assistance.   Nonetheless, the court made this observation:  “In cases like this, even appellate success is elusive because reversal on appeal gives ‘․ only imperfect relief.   We cannot compel the [prosecution] to reinstate its plea bargain offer;  nor can we dictate what sentence may be imposed if defendant pleads guilty without so advantageous an offer as he had before, or if he goes to trial and is again convicted.’  (Com. v. Napper, supra, 385 A.2d at p. 524.)”  (People v. Brown, supra, 177 Cal.App.3d at p. 557, fn. 25, 223 Cal.Rptr. 66.)

Those courts which have addressed the issue have resolved it in a variety of ways.   Most have simply ordered a new trial, (see e.g., State v. Simmons, supra, 309 S.E.2d at p. 498;  State v. Ludwig, supra, 369 N.W.2d at p. 728.)   In one case a bargain was reached for a plea to a lesser offense but because of counsel's ineffectiveness the deal broke down and defendant was convicted of the greater crime.   A writ of habeas corpus was granted and the trial court was directed “to permit tender, for consideration by the court, of a plea of guilty to [the lesser charge].”  (Tucker v. Holland, supra, 327 S.E.2d at p. 396.)   In another case, the court noted it appeared the People's offer continued;  however, if the offer was withdrawn or if the trial court refused to accept the bargain, the defendant was to receive a new trial.   (Lyles v. State, supra, 382 N.E.2d at p. 994.)

After reviewing the cases on the subject of remedy the court in State v. Kraus, supra, 397 N.W.2d 671, stated:  “As we have seen, some jurisdictions grant new trials when a defense attorney fails to advise the accused of a plea bargain offer.   But it is difficult to see how a new trial restores the lost chance of the bargain.   What is being offered is another fair trial.   One more fair trial, or even a series of them, would not necessarily revive the lost chance.”  (Id. at p. 674.)

We believe the most helpful analysis of the remedy problem in this context is provided by Turner v. State of Tenn., supra, 664 F.Supp. at pp. 1122–1126, and the later decisions in that case by higher courts.   There, Turner and two co-defendants were charged with two counts of kidnapping and one count of murder.   One co-defendant agreed to a plea bargain that resulted in a two-year sentence for simple kidnapping.   A second co-defendant went to trial separately, was convicted of two counts of aggravated assault and was sentenced to a term of 70 years.   Because the prosecutor did not wish to subject his witnesses to the trauma of a second trial, he offered Turner the same two-year proposal accepted by his accomplice.   The offer remained in effect until the deadline for settlement imposed by the trial court.   Based on the advice of counsel, Turner went to trial, was convicted of two counts of aggravated kidnapping, one count of murder and was sentenced to a term of life imprisonment plus 40 years for each kidnapping conviction.   Turner was granted a new trial on the basis of ineffective assistance of counsel in deciding to reject the two-year plea offer.   The prosecutor, however, refused to offer a plea bargain of less than 20 years.   The trial court ordered the prosecutor to offer the original two-year bargain.   The state Court of Appeal reversed and Turner sought a federal writ of habeas corpus.  (Turner v. State of Tenn., supra, 858 F.2d at pp. 1202–1203.)

The court in Turner recognizes that when ineffective assistance of counsel results in the lost chance to accept a favorable plea bargain, simply remanding the cause for a new trial is meaningless.   The court notes a remand for new trial is in fact a remand for the resumption of plea negotiations.   The Court concludes, however, mere resumption of negotiations is not enough.   Citing North Carolina v. Pearce (1969) 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, Blackledge v. Perry (1974) 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628;  U.S. v. Goodwin (1982) 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74;  and Thigpen v. Roberts (1984) 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23, the court frames the issue in this way:  “Is any subsequent plea offer to Turner, higher than that extended before his first trial, subject to the due process presumption of prosecutorial vindictiveness?”   The court concludes it is.  (Turner v. State of Tenn., supra, 664 F.Supp. at p. 1124.)

Based on this analysis, the court in Turner remanded the case for a new plea hearing at which the former offer would be presented to the trial court as a completed agreement.   The People could argue there were objectively demonstrable reasons why they should not be bound by the prior offer.   If the prosecutor's reasons were accepted by the court, i.e., the presumption of vindictiveness was overcome, the parties would be free to resume negotiations but presumably if negotiations were fruitless, a new trial would be required.  (664 F.Supp. at pp. 1124–1125.)

The district court decision in Turner was appealed to the circuit court.   The State of Tennessee, among other arguments, contended no presumption of vindictiveness should attach to its decision not to be present its original offer.   The circuit court replied:  “The Supreme Court has clearly established that a criminal defendant who successfully pursues his constitutional right to direct or collateral relief from conviction may not be subjected to greater punishment for exercising that right.  [Citation.]   To protect against the chilling effects posed by such retaliation, a rebuttable presumption of prosecutorial vindictiveness should be established where there is a ‘realistic likelihood’ of prosecutorial retaliation.  [Citation.]”  (Turner v. State of Tenn., supra, 858 F.2d at p. 1208.)

The circuit court concluded:  “We believe that the district court's remedy for Turner's Sixth Amendment deprivation comports with the requirements of United States v. Morrison [ (1981) 449 U.S. 361, 364 [101 S.Ct. 665, 66 L.Ed.2d 564] ].  Granting Turner another trial would not adequately remedy Turner's constitutional deprivation.   On the other hand, requiring specific performance of the original two-year plea arrangement might unnecessarily infringe on the competing interests of the State.   By allowing the State to withdraw the two-year plea upon a showing that such a withdrawal is not the product of prosecutorial vindictiveness, the district court has struck the balance prescribed by United States v. Morrison.”  (Turner v. State of Tenn., supra, 858 F.2d at pp. 1208–1209.)

A separate opinion was filed concurring generally with the majority but dissenting from the imposition of a presumption of vindictiveness.   The opinion stated there was no basis for such a presumption and the matter should be returned for a hearing as directed by the district court at which the People could show cause why the original plea should not be reinstated but without the need to overcome a presumption of vindictiveness.  (858 F.2d at pp. 1209–1210.)

It appears the United States Supreme Court agreed with the dissent.   The Supreme Court granted a writ of certiorari, vacated the judgment and remanded the case to the circuit court for further consideration in light of the Supreme Court's then recent opinion in Alabama v. Smith (1989) 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (Smith ).  (Tennessee v. Turner (1989) 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559.)   The circuit court in turn remanded the matter to the district court.  (Turner v. State of Tenn., supra, 726 F.Supp. at p. 1114.)

Alabama v. Smith, supra, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865, deals with the presumption of vindictiveness which attaches when a criminal defendant is subjected to an increased punishment after a retrial resulting from a successful attack on the original judgment.   The Supreme Court concluded the presumption does not apply when the original judgment was based on a plea of guilty and the subsequent judgment follows a trial because, presumably, the trial court knows more about the crime and the defendant after trial than after the plea.   Thus, there is a rational basis for the increase in punishment and there is no “ ‘reasonable likelihood’ ” that the greater punishment is the result of vindictiveness.  (Id. at pp. 798–803, 109 S.Ct. at pp. 2204–2207.)   The court noted “ ‘a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.’ ”  (Id. at p. 800, fn. 3, 109 S.Ct. at p. 2205, fn. 3.)

On remand the district court expressed the opinion that Smith was not applicable to the legal situation presented by the Turner case.   Nonetheless, the court noted the United States Supreme Court had apparently concluded otherwise and proceeded on that basis.   The district court, therefore, abandoned its requirement the People overcome a presumption of vindictiveness before withdrawing their earlier offer and simply required, under the facts of the Turner case, the original offer be presented to the trial court for its acceptance or rejection without the People having any opportunity to state why it should no longer be bound by its original offer.  (Turner v. State of Tenn., supra, 726 F.Supp. at pp. 1115–1118.)

We conclude the appropriate remedy for ineffective assistance of counsel involving the failure to convey a plea offer or to misadvise a defendant concerning matters important to the decision to accept an offered plea bargain is that defined by the dissenting circuit court justice in Turner.   We conclude it is an improper intrusion on the executive function for this court to bind the People inextricably to any offer made during the negotiation process.   In California the People may withdraw an offered plea bargain at any time before judgment for any reason.  (People v. Williams (1988) 45 Cal.3d 1268, 1306–1308, 248 Cal.Rptr. 834, 756 P.2d 221.)   The People's case may develop up to and through trial.   It certainly is not unusual for the People to discover, even late in the development of the case, factors which change the People's perspective on the plea bargain.  (See Twiggs v. Superior Court (1983) 34 Cal.3d 360, 373, 194 Cal.Rptr. 152, 667 P.2d 1165;  People v. Matthews (1986) 183 Cal.App.3d 458, 463–467, 228 Cal.Rptr. 316.)

So concluding, however, does not mean that when ineffectiveness of counsel has resulted in the inability of a defendant to take advantage of a favorable offer we need, in the formulation of a remedy for that deprivation, to ignore the fact that in most cases offers are made and remain in existence for reasonable periods without cause for change or withdrawal.   Neither need we ignore the reality that some prosecutors may resist, on general principles, the resurrection of a plea offer less favorable to the People than the result achieved at trial.

When, therefore it is determined counsel was ineffective in conveying an offered plea bargain or misadvised a defendant concerning matters important to the decision to accepting or rejecting that offer, and when it is determined such ineffectiveness was prejudicial, the defendant is entitled to accept or reject the offer lost because of the ineffectiveness subject to approval of the bargain by the trial court.   However, the People may withdraw the offer if they are able to articulate to the trial court's satisfaction a reasonable basis for such withdrawal.   Given the People's discretion in such matters, the basis for appropriate rejection is wide and may involve either matters relating to the defendant or the crime charged or the internal policies of the prosecuting office.   We do not believe it beneficial or necessary for purposes of this opinion to attempt to define the boundaries of or the circumstances constituting a reasonable basis for withdrawal of the offer.

In the event the People are allowed to withdraw their offer or the trial court rejects the bargain, the original judgment after trial will be reentered.   The defendant has been given a fair trial and there is no reason in law or logic to provide a second one.

In assessing the People's justification for withdrawal of the original offer, no presumption of vindictiveness applies.   While California decisions on vindictive prosecution are based on the due process clauses of Article I, sections seven and fifteen of the California Constitution, the principles applied are taken from United States Supreme Court precedent.  (Twiggs v. Superior Court, supra, 34 Cal.3d at p. 374, fn. 6, 194 Cal.Rptr. 152, 667 P.2d 1165;  see also In re Bower (1985) 38 Cal.3d 865, 873–880, 215 Cal.Rptr. 267, 700 P.2d 1269.)   We believe it is a reasonable inference that the United States Supreme Court's grant of certiorari in Turner and its remand of the case to the circuit court in light of Smith was a recognition by the high court that no presumption of vindictiveness arises when the prosecutor simply refuses after trial to agree to the same bargain it had offered before trial.   The rationale in Smith was that, in general, after trial a sentencing court has before it a clearer picture of a defendant and his crime than was available at sentencing after a guilty plea.   Thus where a defendant has successfully attacked a judgment based on a plea of guilty, no presumption of vindictiveness arises if the sentence after trial is greater than the sentence imposed after the guilty plea.  (Alabama v. Smith, supra, 490 U.S. at pp. 798–802, 109 S.Ct. at pp. 2204–2206;  but see Turner v. State of Tenn., supra, 726 F.Supp. at pp 1115–1116.)

 Plea negotiations are dynamic.   A plea bargain standing alone is but an executory agreement which involves no constitutionally protected interest until embodied in the judgment of a court.  (People v. Williams, supra, 45 Cal.3d at p. 1308, 248 Cal.Rptr. 834, 756 P.2d 221, citing Mabry v. Johnson (1984) 467 U.S. 504, 507, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437.)   An offer made one day may, for justifiable reasons, be withdrawn the next.   Given this dynamism, there is no basis for the imposition of a presumption of vindictiveness on prosecutors who refuse to abide by offers made during the negotiation process.   The very ineffectiveness of counsel which thwarted the negotiation process may have curtailed the making of a record in the original proceeding revealing the prosecutor's change of position on negotiations or the reasons for that change.

Given this conclusion, the task of the trial court in assessing the prosecutor's good faith and the reasonableness of his justifications for withdrawing the pretrial offer is unencumbered by a presumption of vindictiveness.

3. Ineffective Assistance in This Case

 As we have noted, the grant of a new trial is not an appropriate remedy for the ineffective assistance of counsel in this context.   Thus, the issue of ineffective assistance of counsel during plea negotiations is not properly raised on a motion for new trial.  (See Pen.Code, §§ 1179, 1180.)   The parties and the trial court, however, could not have anticipated our conclusion that a motion for new trial was an inappropriate device for raising this issue.   We therefore remand to the trial court the issue of the ineffective assistance of counsel during plea negotiations for consideration of the matter as a petition for writ of habeas corpus in light of the legal analysis provided by this opinion.

B. Instructions on Aiding and Abetting

Because of the possibility that upon remand the trial court may deny relief on the ineffectiveness issue, we deem it appropriate to consider the additional issue raised on appeal as to the propriety of the instructions on aiding and abetting.

Citing People v. Null (1984) 157 Cal.App.3d 849, 204 Cal.Rptr. 580 (Null ), the trial court at the request of the prosecutor modified the standard CALJIC instruction on aiding and abetting and in addition provided the jury with a special instruction relevant to the criminal liability of a possessor of real property who, knowing of illegal activity on his or her property, takes no action to terminate it.   Appellant argues that instructing the jury in this manner was error.

1. Prior Case Authority

In People v. Null, supra, 157 Cal.App.3d at pages 845–851, 204 Cal.Rptr. 580, marijuana was being cultivated on a 50–acre parcel of land owned by the defendant.   The plants were growing in a ravine about 200 to 250 feet below defendant's mobile home.   Although additional evidence of participation in the cultivation was found, the defendant stated she was unaware of the plants.

The trial court gave the then current CALJIC instruction on aiding and abetting:  “ ‘A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.’ ”  (Null, supra, 157 Cal.App.3d at p. 851, 204 Cal.Rptr. 580.)   The case was tried before the decision in People v. Beeman (1984) 35 Cal.3d 547, 554–561, 199 Cal.Rptr. 60, 674 P.2d 1318, which resolved a controversy in California law by holding that mere knowledge of an unlawful purpose was insufficient for conviction as an aider and abettor and holding it necessary the defendant also act with the intent or purpose of committing, encouraging or facilitating the commission of the offense.  (Id. at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)

The trial court in Null modified the aiding and abetting instruction by deleting from it the final paragraph which stated:  “ ‘Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.’ ”  (People v. Null, supra, 157 Cal.App.3d at p. 851, 204 Cal.Rptr. 580.)   The trial court did so based on its conclusion an owner of property is an aider and abettor when knowing his property is being used for an illegal purpose and he or she takes no action to end that use.  (Id. at pp. 851–852, 204 Cal.Rptr. 580.)

The Court of Appeal concluded the deletion was appropriate and adopted the trial court's reasoning.   The court stated an owner/possessor of real property is an aider and abettor in the cultivation of marijuana if with knowledge of the unlawful use to which the property is put the owner/possessor takes no steps to end that use.  (People v. Null, supra, 157 Cal.App.3d at p. 852, 204 Cal.Rptr. 580.)   The court stated its decision was based on the control the owner/possessor has over the property.   The court conceded no decisions on point existed but noted civil cases imposing responsibility on possessors of land for conditions “situate thereon.”  (Id. at pp. 852–853, 204 Cal.Rptr. 580, citing Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 369–370, 178 Cal.Rptr. 783, 636 P.2d 1121;  Leslie Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605, 200 Cal.Rptr. 575.)

The Null court concluded the reasoning of the civil cases was applicable to aiding and abetting situations.   The court stated:  “Allowing marijuana plants to grow on one's property for six months amounts to more than ‘mere knowledge.’ ”  (People v. Null, supra, 157 Cal.App.3d at p. 853, 204 Cal.Rptr. 580.)   The court further stated:  “The trend of the law is toward accountability and responsibility of landowners.   A possessor of land has a right to control.”  (Ibid.)  The court summarized:  “Just as he may be civilly responsible for injuries caused by dangerous conditions on his land which was not created by him, he may be responsible as an aider and abettor for cultivation of contraband on his land if he had knowledge of its presence for a sufficient length of time to take corrective action.”  (Ibid.)

2. Aiding and Abetting Instructions

In the present case the trial court gave the jury the post–Beeman CALJIC instruction on aiding and abetting.  (CALJIC No. 3.01.)   The instruction states:  “A person aids and abets the commission of a crime when he or she, one, with knowledge of the unlawful purpose of the perpetrator, and two, with the intent or purpose of committing, encouraging or facilitating the commission of the crime by act or advice aids, promotes, encourages or instigates the commission of the crime.”  (Italics added.)

The jurors were further told pursuant to CALJIC No. 3.01 that an aider and abettor need not be present at the scene of the crime and that mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.

Based on Null the trial court did not give the concluding paragraph of CALJIC No. 3.01 which states:  “Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.”  (CALJIC No. 3.01.)

The trial court then instructed concerning the charged offenses and the general law pertinent to those offenses.   In the midst of these instructions, the trial court stated:  “If it is established that a person is in lawful possession of real property and that person has knowledge of the existence of illegal activity on that property, his failure to take steps to stop that illegal activity, if he has knowledge of its presence for a sufficient length of time to take corrective action, would constitute aiding and abetting the commission of a crime.”

 Putting aside momentarily the larger question of the legal propriety and social wisdom of the Null concept, we note the Null instruction given here was prejudicially defective.   Unless this court is to create a new crime, a power we do not have (Pen.Code, § 6), a person not actually involved in the cultivation of marijuana cannot be guilty of that offense unless he or she has aided and abetted the crime.  (See Pen.Code, § 31.)

 As noted, aiding and abetting requires more than mere knowledge of the perpetrator's criminal purpose.   It also requires the intent or purpose to commit, encourage or facilitate commission of the offense.  (People v. Beeman, supra, 35 Cal.3d at p. 556–559, 199 Cal.Rptr. 60, 674 P.2d 1318.)   An instruction which does not state both elements is defective.

While the CALJIC No. 3.01 instruction given by the trial court properly included both the knowledge and intent requirements, the Null instruction did not.   In this case the adequacy of the general instruction cannot cure the defect in the specific instruction.   Given the positioning of the defective Null instruction, its specificity and its particular application to the fact of this case, it is probable the jury concluded the possession of real property imposed a duty to take action to stop known illegal activity on such property without regard to the possessor's intent to commit, encourage or facilitate the offense.

 Having decided the jury was improperly instructed on aiding and abetting, it is necessary we determine if the error was prejudicial.   In this context error is prejudicial unless we conclude beyond a reasonable doubt it did not affect the verdict.  (People v. Bunyard (1988) 45 Cal.3d 1189, 1227, 249 Cal.Rptr. 71, 756 P.2d 795.)   The courts have recognized a logical and natural relationship between knowledge of a criminal purpose coupled with an act assisting or facilitating that purpose and the intent to assist or facilitate the commission of the offense.   Thus, when one knows of a criminal purpose and does an intentional act in furtherance of that purpose, it is often reasonable to conclude the actor intended to assist or facilitate the offense.  (See People v. Beeman, supra, 35 Cal.3d at pp. 557–558, 199 Cal.Rptr. 60, 674 P.2d 1318.)   When, however, a finding of aiding and abetting is predicated not on an act but rather on an omission, as in the present case, the relationship between knowledge and intent to facilitate is more tenuous.

Appellant from the time of his arrest stated the plants did not belong to him but rather to Diane.   One of appellant's roommates testified he had seen Diane tending the plants and believed they were hers and not appellant's.   Appellant stated he was aware the plants were present but did not want them at the house and asked Diane to remove them.   We cannot say beyond a reasonable doubt that had the jury been instructed that to be an aider and abettor it was necessary appellant intend to facilitate Diane's criminal purpose, they would not have acquitted him of the cultivation charge.

3. Possession of Property and Aiding and Abetting

 While we must reverse appellant's conviction for cultivation based on the erroneous nature of the Null instruction given, the basis for that reversal does not resolve the larger question of whether Null's core holding, as modified pursuant to Beeman, is correct.   Based on the authority of Null, we conclude a possessor of real property may be convicted for the cultivation of marijuana based on an aiding and abetting theory when the possessor knows of the cultivation on his property and forebears from termination of that activity with the intent to facilitate the illegal conduct.   We stress our conclusion is only applicable to the unique facts of Null and the present case and offer no opinion on the application of Null to other factual settings.

C. The Grant of Probation

Imposition of sentence was suspended and appellant was granted three years' probation on the condition, among others, he serve 90 days in custody.   Appellant notes comments by the trial court during the probation hearing that the “normal situation” in similar cases would be a custody condition of 90 to 120 days.   The trial court stated it found nothing exceptional about this case and followed the “standard” practice and included a 90–day custody condition in the order of probation.   Appellant argues this approach to the determination of a custody condition was improper since it denied appellant the individual review to which he was entitled.

In light of the disposition in this case, it is unnecessary we resolve this issue.   However, we do not believe the trial court was applying an automatic condition to appellant's probation independent of a consideration of the circumstances of his case.   The court was merely stating that given the seriousness of the offenses, it was often the conclusion of judges that a custody condition of 90 to 120 days was reasonable and no facts appeared in this case to make that period shorter or longer.

DISPOSITION

The judgment of conviction on count one (cultivation of marijuana) is reversed.   The convictions on count three (possession of concentrated Cannabis) and count four (possession of a controlled substance) are affirmed.   On remand the trial court is directed to consider that portion of the motion for new trial concerning ineffective assistance of counsel before trial as a petition for habeas corpus to be decided in light of the legal analysis contained in this opinion.

FOOTNOTES

FN1. All statutory references are to the Health and Safety Code unless otherwise specified..  FN1. All statutory references are to the Health and Safety Code unless otherwise specified.

2.   We are aware another panel of this court in a published decision filed simultaneously with this opinion has reached conclusions contrary to those contained here.  (See People v. Alvernaz (1991) 231Cal.App.3d 792, 282 Cal.Rptr. 601.)

BENKE, Associate Justice.

WIENER, Acting P.J., and THOMPSON, J.,* concur.