Filed 6/6/16 P. v. Mattson CA2/6

                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or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.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SECOND APPELLATE DISTRICT

                                                     DIVISION SIX


THE PEOPLE,                                                                   2d Crim. No. B260082
                                                                            (Super. Ct. No. F463459)
     Plaintiff and Respondent,                                              (San Luis Obispo County)

v.

ANDREW DAVID MATTSON,

     Defendant and Appellant.



                   Three years and six attorneys after the complaint was filed and well into the
trial, appellant Andrew David Mattson pled no contest pursuant to a negotiated plea
agreement. At the colloquy preceding his acceptance of the “deal,” he expressly stated that
he was changing his plea because he did not feel that he received fair treatment from judges
who knew and were friendly with the victim’s employer. He agreed to plead no contest
only if he could appeal pretrial rulings and the judges’ failure to recuse themselves. The
trial court with the consent of the prosecutor agreed. While it is true that the agreement he
entered into permitted him to “appeal,” established rules preclude testing such claims on
appeal because they do not affect the legality of the plea proceedings.
                   Pursuant to the plea agreement, Mattson was convicted of one count of
corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)),1 one count of second-degree


         1
             All further statutory references are to the Penal Code unless otherwise stated.
robbery (§ 211), and four counts of assault with force likely to produce great bodily injury
(§ 245, subd. (a)(1)). He admitted allegations that he inflicted great bodily injury
(§ 12022.7, subd. (e)) and had two prior convictions (§ 667.5, subd. (b)). The trial court
sentenced him to state prison for 16 years.
              Mattson contends that he should be entitled to withdraw from his plea
agreement because it was based on a mistaken understanding that he was preserving his
right to appeal issues that are in fact non-cognizable following a guilty plea. We agree.
Accordingly, we conditionally vacate and remand to the trial court to permit Mattson the
opportunity to set aside his plea should he wish to do so. If he declines to do so, the
judgment will stand affirmed.
                      FACTS AND PROCEDURAL BACKGROUND
              According to the probation report, Mattson and his girlfriend lived together for
six years of their seven-year relationship. During the final two months, he frequently beat
her severely and threatened to kill her. One day, he called her names such as “dirty slut”
and demanded that she write down the names of people with whom she had had prior sexual
encounters. He accused her of lying. He tied her wrists and ankles together with
shoestrings and gagged her with a strap, leaving lacerations, multiple bruises, and ligature
marks on her ankles. He locked her in a dark closet for an hour, stating that he would kill
her. Eventually, he had her change clothes into something “sexy.” They drove around,
looking to buy heroin, she thought. He again threatened to kill her that night.
              The prosecution charged Mattson with one count of torture (§ 206), four
counts of criminal threats (§ 422), two counts of assault with a deadly weapon (§ 245,
subd. (a)(1)), one count of false imprisonment by violence (§ 236), one count of kidnapping
(§ 207, subd. (a)), one count of corporal injury to a cohabitant, two counts of second-degree
robbery, two counts of forcible oral copulation (§ 288a, subd. (c)(2)(A)), and three counts of
disobeying a court order (§ 166, subd. (a)(4)).2 The charged counts exposed him to a



       2
         The counts for disobeying a court order were added in an amended information
filed nine days before Mattson entered into the plea agreement.
                                               2
maximum custodial sentence of more than 70 years to life with mandatory registration as a
sex offender.
                The victim worked as a paralegal for “a well-known criminal defense
attorney . . . in San Luis Obispo.” Three successive deputy public defenders appointed to
represent Mattson declared a conflict, and the trial court appointed private attorney Harold
Mesnick as defense counsel. Mattson told the trial court that he had a conflict with Mesnick
due to Mesnick’s friendship with the victim’s employer. The trial court treated the issue as
a Marsden motion,3 which it denied.
                Mattson waived a preliminary hearing. Mesnick subsequently withdrew from
the representation because of a conflict. Mattson’s new counsel, Steven Crawford, moved
to withdraw the preliminary hearing waiver. The trial court denied the motion. The court
later relieved Crawford as defense counsel and appointed Robert Bettencourt as a
replacement. In a subsequent Marsden motion, Mattson told the court, “there’s [no]
attorney in this county” who would be “completely on my side” because of their relationship
with the victim’s employer. The court denied the Marsden motion and a renewed Marsden
motion without prejudice.
                Bettencourt filed a motion to dismiss the case due to the destruction of
evidence under California v. Trombetta (1984) 467 U.S. 479. The trial court denied the
Trombetta motion.4 In addition, the trial court denied several of Mattson’s evidentiary
requests, including a motion for discovery of the investigating officer’s confidential
personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531.
                On the third day of trial, Mattson accepted the prosecution’s offered
disposition. He understood “the essence of the offer” was that he would plead no contest in
exchange for a determinate 16-year sentence “in state prison at 85 percent credit with two
strikes and no . . . sex offender registration.”5

       3
          (People v. Marsden (1970) 2 Cal.3d 118.)
       4
          We denied writ relief in Case No. B250962.
        5
          The “two strikes” referred to the corporal injury to a cohabitant and second-degree
robbery counts to which Mattson was pleading no contest. He did not admit any prior
strikes.
                                                    3
              The trial court granted Mattson a certificate of probable cause to appeal on the
grounds that (1) certain judicial officers should have recused themselves; (2) the prosecutor
committed misconduct and defense counsel was ineffective by convincing him to waive a
preliminary hearing; and (3) the Trombetta motion should have been granted.
                                        DISCUSSION
              A criminal defendant who pleads guilty or no contest may appeal “based on
‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the
proceedings’ resulting in the plea.” (People v. Voit (2011) 200 Cal.App.4th 1353, 1364,
quoting § 1237.5, subd. (a).) None of the grounds for appeal in Mattson’s certificate of
probable cause meet this requirement. Mattson concedes that these issues are non-
cognizable here. He contends, however, that he was falsely promised that he could appeal
them and on that basis seeks to withdraw from his plea agreement.
              A negotiated plea agreement, being a form of contract, is interpreted
according to general contract principles. (Doe v. Harris (2013) 57 Cal.4th 64, 69.) “ ‘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.” (Id., § 1649; [citation].)’
[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. (Civ. Code, §§ 1635-1656;
Code Civ. Proc., §§ 1859-1861, 1864; [citations].)’ [Citations.]” (People v. Shelton (2006)
37 Cal.4th 759, 767.)
              The form plea agreement here provided, “I understand there is no right to
appeal from my guilty or no contest plea in this case. I also waive and give up my right to
appeal the denial of any and all motions made and denied in my case.” Mattson did not

                                               4
initial this paragraph, as he had the surrounding paragraphs. Instead, at the beginning of the
agreement, he stated that he was “not waiving appellate rights.”
              At the plea colloquy, Mattson stated that he had spent “a lot of time” speaking
with his attorney and had “some concerns,” which his attorney explained were “[o]nly as to
the appellate rights.” The trial court told Mattson, “[The plea agreement] says you’re not
waiving your appellate rights.” He stated, “I’d like to . . . elaborate right there. . . . There
has been a denial of my [pretrial] motions. And, I believe, that’s because of the familiarty
[sic] [between] the victim’s boss and the judges that were hearing those motions. And so
because of those denials and the denial of my preliminary hearing back, the amount of time
I would have faced, if I had proceeded to trial, was too large for me to risk going to trial.
So, under those circumstances, is the reason that I’m taking the plea.” The court had
Mattson clarify that he was referring to motions he had made before previous judges but did
not otherwise respond to his comments.6

       6
         In relevant part, this exchange was as follows:
        “The court: Okay. So the agreement that’s set forth on page 2 indicates that the time
that would be imposed in this matter would be 16 years in state prison; that the credits
would be a maximum of 15 percent; that two of the charges that you would be entering a
plea to would count as strikes under California’s Three Strikes law; you would not be
required, as a return to this plea, to register under section 290. Penal Code 290. And it says
you’re not waiving your appellate rights.
        “Are those the terms that you understand are part of this agreement?
        “The defendant: Yes.
        “The court: Is there any other term or promise or representation that’s been made to
you in order to get you to enter into this agreement?
        “The defendant: Your Honor, I’d like to kind of elaborate right there. No, there
hasn’t been any threats, promises or anything else. There has been denial of my motions.
And, I believe, that’s because of the familiarty [sic] with the—with the victim’s boss and the
judges that were hearing those motions. And so because of those denials and the denial of
my preliminary hearing back, the amount of time I would have faced, if I had proceeded to
trial, was too large for me to risk going to trial. So, under those circumstances, is the reason
that I’m taking the plea.
        “The court: Okay. I understand.
        “When you say the denial of motions by judge—made by judges who were familiar
with the alleged victim’s—
        “The defendant: I’m not referring to you.
        “The court: I’m sorry?
                                                 5
              As Mattson suggests, the trial court had a duty to “warn [him] that those issues
might not be cognizable if he entered a plea.” (See People v. Meals (1975) 49 Cal.App.3d
702, 708 [defendant “not properly advised of the consequences of his plea” where the
“limited right to appeal was not explained to [him]”]; People v. Brown (1971)
18 Cal.App.3d 1052, 1055 [allowing defendant to withdraw plea where “the plea bargaining
procedure itself was fatally defective” because he “was not advised of the nature of the
appeal right he was to receive” and “the record [was] devoid of any indication that [he]
knew or understood the distinction between a general or unrestricted right to appeal from a
judgment after trial, and an appeal limited by a certificate of probable cause after a plea of
guilty”].)
              Mattson’s consent to the plea agreement was the product of his mistake of
law. After the trial court recited the provision that Mattson was not waiving his appellate
rights, Mattson explained that he was reserving the right to appeal the denial of pretrial
motions because he felt those rulings were improperly influenced by the judges’ relationship
with the victim’s employer.7 Whether the prosecutor and trial court shared his incorrect
assumption about the scope of his appellate rights after a no contest plea or whether they
simply failed to correct his evident misunderstanding, the mistake of law vitiates his consent
to the plea agreement and entitles him to rescind it. (See Civ. Code, § 1578; People v.
Superior Court (Sanchez) (2014) 223 Cal.App.4th 567, 573.)
              The People rely on People v. Hernandez (1992) 6 Cal.App.4th 1355, which
held that “the trial court’s acquiescence in a defendant’s expressed intention to appeal is
wholly ineffective to confer jurisdiction on the appellate court if the issue proposed to be


       “The defendant: I’m not referring to you, sir.
       “The court: Even if you were, it doesn’t bother me. I just want to make sure the
record is clear.
       “You’re talking about prior motions, not those today?
       “The defendant: Correct, sir.
       “The court: Okay.”
       7
         In addition, Mattson previously told the trial court that he was concerned about the
relationship between one of the judges and the victim herself, claiming they were “on a first-
name basis.”
                                               6
raised is in fact not cognizable on appeal.” (Id. at p. 1361.) This is true but irrelevant.
Mattson acknowledges that we lack jurisdiction to review issues waived by the plea
agreement. It is for this reason that he seeks rescission. In Hernandez, the opposite was
true. The defendant erroneously asserted that the Court of Appeal had jurisdiction to review
the denial of his pre-plea motion and did not seek to withdraw his plea. (Id. at p. 1362,
fn. 6.) Moreover, Hernandez is factually distinguishable because there was no indication
that the defendant intended to appeal specific, non-cognizable issues at the time he entered
the plea.
              Directly on point are People v. Hollins (1993) 15 Cal.App.4th 567 and People
v. Coleman (1977) 72 Cal.App.3d 287. In Hollins, the Court of Appeal allowed the
defendant to withdraw his plea after the trial court made erroneous statements “[t]he clear
import of [which] was that review by a higher court . . . remained available despite the
change of plea.” (Hollins, at p. 573.) In Coleman, as here, the defendant agreed to plead
guilty after adverse rulings on pretrial motions. Although his plea precluded an appeal of
these rulings, the defendant, “[w]ith the acquiescence of the prosecutor, . . . informed the
court that the bargain included the preservation of [his] right ‘to appeal the [rulings].’ ”
(Coleman, at p. 292.) The trial court did not disabuse him of this belief, stating only that
“ ‘[t]he record can indicate the representations you are making. As far as the legal effect of
it, that will be up to the Court of Appeal.’ ” (Ibid.) The Court of Appeal reversed and
remanded to allow the defendant to withdraw his plea, concluding that the plea “was
induced by a material mistake in which the trial court participated.” (Id. at p. 293.) So too
here. (See also People v. DeVaughn (1977) 18 Cal.3d 889, 896 [plea agreements rescinded
where trial court “improperly induced [defendants] to enter such pleas” by “bargain[ing]
with [them] to preserve for appellate purposes [non-appealable] issues”].)
              Mattson need not demonstrate prejudice to withdraw his plea. In arguing
otherwise, the People misunderstand the reason we must grant the requested relief.
Although the trial court should have advised him that the issues he intended to appeal were
not cognizable if he entered a plea of no contest, we are not setting aside the plea due to
procedural error. Plea agreements are contractual in nature. Because Mattson’s consent to

                                                7
the agreement here was based on a mistake of law, he is entitled to rescind it as a contractual
remedy. (See People v. Sanchez, supra, 223 Cal.App.4th at p. 573 [appropriate remedy for
illegal plea agreement “comes from ‘general contract principles’ ”].)
              The People request that rather than allow Mattson to withdraw his plea, we
“allow [him] to proceed with a merits appeal of those specified issues.” It is unclear to
which issues they refer. During the plea colloquy, Mattson raised two specific grounds for
appeal—the denial of his motion to withdraw his waiver of a preliminary hearing and
certain trial judges’ alleged conflicts of interest. He also complained about the trial court’s
denial of unspecified motions. He has not briefed any of these contentions here.
Regardless, we lack jurisdiction to review them. (See People v. Hernandez, supra,
6 Cal.App.4th at p. 1361.)
                                        DISPOSITION
              The judgment is conditionally vacated and this matter is remanded to the trial
court to permit Mattson to set aside his plea should he wish to do so. If so, the trial court
shall reinstate all counts as charged in the second amended information. Should he decline
to so move the court, the judgment shall stand affirmed.
              NOT TO BE PUBLISHED.



                                           PERREN, J.

We concur:



              GILBERT, P. J.



              YEGAN, J.




                                               8
                                Jacquelyn H. Duffy, Judge
                        Superior Court County of San Luis Obispo
                           ______________________________


             Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and
Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, and David F. Glassman, Deputy
Attorney General, for Plaintiff and Respondent.




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