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Filed 1/1 1 / 24 P. v. Ervin CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent

,

v.

MARCUS ERVIN

, Defendant and Appella nt

. A1 6 6283

( Solano County Super. Ct. No.
FCR35 4043

MEMORANDUM OPINION 1

Marcus Ervin pleaded no contest to misdemeanor unlawful possession

of ammunition (§ 30305, subd. (a)(1)) pursuant to a negotiated plea

agreement

. Among the agre e d terms

, Ervin would serve 90 days in jail,

receive one year of court probation, and have return ed to him the $8,770 that

police confiscated at the time of his arrest. Once it appeared he would not

receive that money, Ervin filed a motion for the return of property. At the

conclusion of a hearing on August 17, 2022, t he trial court denied the motion,

1 We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.) Undesignated statutory references are to the Penal Code. We provide a limited factual summary because our opinion is unpublished and the parties know, or should know, “the fac ts of the case and its procedural history.” ( People v. Garcia (2002) 97 Cal.App.4th 847, 851.)2

but it offered Ervin an opportunity to withdraw his plea. In response to th e

ruling, Ervin filed this appeal challenging the trial court’s p urported “ [ p ] ost

judgment order denying specific enforcement of [the] plea agreement.”

Because an order denying a motion for the return of property is not

appealable, we must dismiss the appeal.

“ ‘ “It is settled that the right of appeal is statutory and that a judgment

or order is not appealable unless expressly made so by statute. ” [Citation.] ’ ”

( Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) S e ction 1237,

subdivision (b), authorizes appeals from “any order made after judgment,

aff ecting the substantial rights of a party.” But “courts generally do not find

a defendant’s substantial rights are implicated when a postjudgment order

merely deprives the defendant of personal property.” ( Gray v. Superior Court

(2016) 247 Cal.App.4th 115 9, 1165.) “A motion for return of property is a

separate procedure from the criminal trial and is not reviewable on an appeal

from an ultimate judgment of conviction. [Citation.] If the ‘separate

proceeding’ of a motion for return is regarded as a crimi nal proceeding, for

which the right to appeal is governed by

. . . section 1237, an order denying

the motion is nonappealable because such an order is not listed among any of

the matters for which an appeal is authorized by

. . . section 1237.” ( People v.

Hopkins (2009) 171 Cal.App.4th 305, 308 ( Hopkins ) .)

Here, Ervin purports to appeal from the August 17, 2022, “ order

denying specific enforcement of [the] plea agreement,” a label he gives to the

trial court’s order denying his motion for the r eturn of property. As the

Attorney General notes in his brief, Hopkins held that such an order is

nonappealable, and neither Ervin’s reply nor our own research has uncovered

authority holding otherwise.3

Having concluded we must dismiss this appeal, we deny as moot the

Attorney General’s request to strike Ervin’s opening brief

, and we decline to

address the merits of Ervin’s claim of error in the trial court’s order

. Finally,

and notwithstanding the fact that th e order challenged here is reviewable by

writ of mandate ( Hopkins

, supra , 171 Cal.App.4th at p

. 309), we do not deem

Ervin’s notice of appeal a petition for writ of mandate because he has not

asked us to do so

— even after the Attorney General’s brief aler ted Ervin to

the authority of Hopkins on this dispositive issue. In any event, an

“individual may seek return of his or her property in a civil action for

recovery of property with an attendant right to appeal from any adverse civil

judgment.” ( Hopkins , at p. 309.)

DISPOSITION

The appeal is dismissed.

_________________________ SMILEY , J. *

We concur:

BROW N , P.J. STREETER, J.

People v. Ervin (A1 6 6283 )

* Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.