Filed 4/27/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re OBIE STEVEN ANTHONY III

on Habeas Corpus. B256949
(Los Angeles County Super. Ct. No. BA097 736)

APPEAL from a n order of the Superior Cour t of Los Angeles County, Kelvin D.
Filer
, Judge. Appeal dismissed

. Jackie Lacy, District Attorney of Los Angeles County; Phyllis Asayama, Deputy District Attorney; Scott D. Collins
, Deputy District Attorne y , for A ppellant The People

. Northern California Innocence Project, Linda Starr and Paige Kaneb for Respondent Obie Steven Anthony III

.

___________________________2

Obie Anthony filed a petition for writ of habeas corpus challenging his 1995
murd er conviction. Following a 10

- day evidentiary hearing, the trial court granted the petition and Anthony’s criminal charges were dismissed. Anthony subsequently filed a
claim pursuant to Penal Code section 4900 seeking compensation for his allegedly

erron eous conviction and inc arceration. At the time he filed his claim, Anthony was required to prove his factual innocence in an administrative hearing before the California Victim Compensation and Government Claims Board

. While his claim was pending
, the
Le gislature adopted Penal Code section 1485. 55
, allowing a ny person who has prevailed in a habeas proceeding to file a motion in the trial court for a finding of factual
innocence , and requiring the b oard to accept such a finding and approve the section 4900 claim without any further hearing. Anthony filed a motion pursuant to the newly

- added

statute which t he trial granted.
The district a ttorney appeals, arguing that : (1) applying section 1485.55 to Anthony’s compensation claim violates principles of ret roactivity ; and (2) the re is insufficient evidence to support the trial court ’s finding of factual innocen ce . We dismiss the appeal for lack of jurisdiction, concluding that the court ’s order granting Anthony ’s
section 1485.55 motion is not appealable by the P eople.

FACTUAL BACKGROUND
A. Summary of Anthony’s Habeas Proceedings
In 1995, a jury found Obie Anthony guilty of murder and other crimes. He was
sentenced to life in prison without the possibility of parole

. On April 7, 2010, Anthony filed a pet ition for writ of habeas corpus based on : (1) ineffective assistance of counsel; (2) prosecut orial misconduc t ; (3) the presentation at trial of materially false evidence; and (4) actual innocence. After issuing an order to show c ause, the trial court hel d a 10

- day

e videntiary hearing . Anthony and 12 other witnesses testified at the hearing, including
the lead detective on his criminal investigation and an individual who had provided eyewitness testimony against him at trial

.3

On September 30, 2011, the trial court issued a 24

- page order granting Anthony’s habeas peti tion. The trial court found that Anthony had established “his conviction was based on material false testimony
, ” explaining that the evidence showed t he prosecution’s “key witness” had “spe cifically lied to the jury” a nd subsequently recanted his identification of Anthony

. The court also found Anthony had established “there was prosecutorial misconduct at

. . . trial because the deputy district attorney did not correct false testimony and

. . . suppress [ed] . . . favorable evidence.” T he court found the district attorney had , among other things : failed to correct the “key witness’s” statement that he had not received special treatment in exchange for his testimony; withheld from
the defense statements from additional persons who had allegedly witnesse d the crime;
and fail ed to inform the defense that a trial witness had “incorrectly picked a ‘filler’” the
first time he was shown a photographic lineup of suspects.
On the issue of ineffecti ve assistance of counsel, the court concluded that Anthony’s attorney committed multiple “errors of omission [that]

― taken together

― constitute a deficiency of performance that theoretically deprived petitioner of competent representation.” The court declined, however, to determine whether there was a reasonable probability that counsel’s errors had affected the jury’s decision. The court
also ruled that Anthony had failed to establish actual innocence. The court noted that
, to prevail on such a claim, the petitioner had the “heavy burden” of showing “that newly
discovered evidence completely undermine [d] the prosecuti ons entire case and points unerringly to innocence.”
T he court concluded: “[T]he petitioner has met his burden in establishing that
there were several errors which occurred at his trial in 1994. The combined effect of those errors cannot be ignored. . . . This court firmly believes that had the jury heard the evidence that was omitted or excluded . . ., it likely would have affected the outcome of the trial. For all of these reasons, this Court finds that the petitioner was d enied d ue process of law a nd was denied a fair trial

. Therefore, the petition is gran t ed and the peti tioner’s conviction is set aside.” The court ordered Anthony released and set the matter for a pretrial hearing . The prosecution did not appeal the order. (See Penal Code,4

§ 150 6 1 [ “ An appeal may be taken to the court of appeal by the people from a final order of a superior court made upon the return of a writ of habeas corpus discharging a defendant or otherwise granting all or any part of the relief sought ” ].)
At the ensuing pretrial hearing
, held November 11, 20 11, the district attorney
informed the court the P eople w ere unable to proceed . The court dismissed the criminal proceedings pursuant to section 1382, subdivision (a)(2).

B. Anthony’s Section 4900 Claim and the Interve ning Change in Law In 2013, Anthony filed a section 4900 claim with the Victim Compensation and
Government Claims Board (the board) seeking compensation for his allegedly erroneous conviction and imprisonment. ( See Tennison v. California Victim Comp. & Government
Claims Bd . (2007) 152 Cal.App.4th 1164, 11 79 ( Tennison ) [section 4900 “ accords relief to any person who, ‘ having been convicted of any crime

. . . amounting to a felony, and having been impri soned therefor e in State prison,’ can demonstrate [his or her factual
innocence ] ”]. ) Under the statutory framework then in effect, a claimant seeking relief
under section 4900 was required “ to introduce evidence” establishing th ree elements : (1)

“ the crime with which he or she was charged was either not comm itted at all, or, if committed, was not committed by him or her ”; (2) “ he or she did not, by any act or
omission on his or her part, either intentionally or negligently, contribute to the bringing
about of his or her arrest or conviction for the crime with which he or she was charged ” ; and (3) “ the pecuniary injury sustained by him or her through his or her erroneous conviction and imprisonment. ” ( F ormer § 4903; see also Tennison , supra, 152 Cal.App.4th at p. 1182. ) T he Attorney General was permitted to i ntroduce evidence in opposition to the claim

. ( F ormer § 4903.)
If the b oard found the claimant had proved his or her claim by a preponderance of the evidence, it was required to issue a report to the Legislature recommending that an appropriation be made for the purpose of indemnifying the claimant in the sum of $100 per day of incarceration. (See former § 4904; Diola v. State Board of Control (1982) 135

1 Unless otherwise noted, all further statutory citations are to the Penal Code.5

Cal.App.3d 580, 588, fn. 7 ( Diola ) [ “To prevail claimant must carry the burden of proof
of innocence by a preponderance of the evidence”].) The b oard’s administrative decision

was subject to writ review under Code of Civil Procedure section 1094.5 . ( See Tennison
, supra, 152 Cal.App.4th at p. 118 0.)
While Anthony ’s claim was pending before the b oard, th e Legislature adopted a bill to amend the procedures g overn ing section 4900 claims . ( See Stats. 2013, ch. 800, (S.B. 618)

. ) The bill a dded Penal Code section 1485.55 , which set s for th circumstances
under which the trial cour t, rather than the board, is r esponsible for determin ing whether
the claimant has established factual innocence. Section 1485.55, s ubdivision (a) provides
that if a court grants a writ of habeas corpus o n the basis of actual innocence, “ that finding shall be binding on the [b oard]

. . . , and upon application by the person, the board shall, without a hearing, recommend to the Legislature that an appropriation be made and the claim paid

. . . . ” Subdivision (b) provide s that if a court grants a writ of habeas corpus on ground s other than actual innocence, “ the petitioner may move for a finding of innocence by a preponderance of the evidence that the crime with which he or she was charged was either not committed at all or, if committed, was not committed by him or her .” If the

court makes such a finding, “ the board shall, without a hearing, recommend to the Legislature that an appropriation be made and the claim paid . . . .” (§ 1485.55, subd. (d).) The newly

- adopted bill also amended portions of section 4900 et seq

. Amended
secti on 4902 now requires that, in cases where section 1485.55 applies , the Board must calculate the claimant’s compensation and issue a recommendation to the Legislature

“ within 30 days of the presentation of the claim. ” Amended s ection 4903 provides that,
fo r claims not subject to section 1485.55 , the claimant is only required to prove two element s : that “the crime with which he or she was charged was either not committed at all, or, if committed, was not committed by him or her ” and “the pecuniary injury

su stained by him or her through his or her erroneous conviction and imprisonment.”
Amended section 4903 further provides that in any hearing before the B oard, “the factual findings and credibility determinations establishing the court’s basis for granting a writ of6

habeas corpus . . . sh all be binding on the Attorney G eneral, the factfinder and the board.” (§ 4903, subd. (c).)

C. Anthony’s Section 1485.55 Motion On February 4, 2014, Anthony filed a motion for finding of factual innocence pursuant to section 1485.55, subdivision (b). The motion was predicated on the evidence Anthony had presented during his habeas proceeding and the findings of fact and
conclusions of law set forth in the trial court’s order g ranting him relief . The district attorney opposed the motion, arguing that newly

- adopted s ection 1485.55 did not apply retroactively to cases in which the underlying writ of habeas corpus had been issued
before the statute was passed . Alternatively, the district attorney argued that Anthony
had failed t o prove by a preponderance of the evidence that he did not com mit the crimes
of which he was convicted. The trial court rejected both arguments. T he court found that retroactivity wa s

“ not an issue” because Anthony ’s section 4900 claim was pending befo re the Board when

s ection 1485.55 became effective

. O n the question of factual innocence, the court explained that the preponderance of the evidence standard set forth in section 1485.55, subdivision (b) was a significantly lower than the “high” burden An thony had faced in attempting to establis h actual innocence at the habeas proceeding . Relying on its prior findings of fact and conclusions of law , the court listed three factors in support of its finding that Anthony was factually innocent under the prep onderance standard . First, the

court found Anthony’s testimony at the evidentiary hearing to be “credible,” noting that “[h]is alibi and his claim that he wasn’t there and didn’t know anything about [the crime] ha [d] been consistent” throughout the case. Second, the court found the evidence
at the habeas proceeding demonstrated t he prosecution’s primary trial witness “ ha [ d ]

no credibility.” Third, the court emphasized “there was not one piece of physical
evidence

. . . that connects [Anthony] to the cas e. . . . And . . . there is nothing that
corroborate s the eye witness identification, even today.”7

On May 30, 2014 , the court entered an order granting Anthony’s motion for finding of factual innocence. The district attorney appealed the order.

DISCUS SION
The district attorney raise s two arguments on appeal. First, she contends the trial

court erred in concluding that “section 1485.55, subdivision (b)

. . . appl [ies] to cases where the grant of habeas relief occurred before the statute took effect.” Second, the district attorney argues that the court “erred in granting the motion because the
record

― taken as a w hole

― does not demonstrate that [Anthony] is factually innocent of the crimes charged.” Anthony, however, argues tha t the district attorney ha s no authority to appeal an order issue d pursuant to section 1485.55 . We agree that the order is not appealable

. “The prosecution’ s right to appeal in a criminal case is strictly limited by statute. [Citation.] Long standing authority requires adheren ce to these limits even though the ‘the People may thereby suffer a wrong without a remedy.’ [Citation.] The circumstances allowing a People’s appeal are enumerated in section 1238.” ( People v.
Chacon (2007) 40 Cal.4th 558, 564 ; see also People v. Drake (1977) 19 Cal.3d 749, 754 [“‘ The Legislature has determined that except under certain limited circumstances the People shall have no ri ght of appeal in criminal cases’ [citation]. Those circumstances

are enumerat ed in section 1238 ” ].) “ ‘ [C] ourts are pr ecluded from so interpreting section
12 38 as to expand the People’ s right of appeal into areas other than those clearly specified by the Legislature. ’ [Citation.] ” ( People v. McGuire (1993) 14 Cal.App.4th 687, 700 ( McGuire )

. ) The statement of appealabil ity set forth in the district attorney’s opening appellate
brief 2 asserts that the order is appealable under section 1238, subdivision (a)(5)
, which

2 The California Rules of Court require the appellant’s opening brief to include a statement that “the judgment appealed from is final, or explain why the orde r appealed from is appealable

. ” (California Rules of Court, Rule 8.204, subd

. (a)(2)(B) ; see also Rule 8.360, subd. (a) [“briefs in criminal appeals must comply as nearly as possible with rules 8.200 and 8.204”].)8

authorizes the P eople to appeal from “ [a] n order made after judgment, affecting the substantial rights of the people .” “ ‘ T o affect the People’s substantial rights [,] an order

“ must in some way affect the judgment or its enforcement or hamper the further prosecution of the particular proceeding in which it is made. ” ’ [Citation.]” 3 ( People v.
Leonard (2002) 9 7 Cal.App.4th 1297, 1300 ( Leonard ) ; McGuire, supra , 14 Cal.App.4th at p. 700 ; People v. Benavides (2002) 99 Cal.App.4th 100, 104 ( Benavides ) ; People v.
Garcia (1931) 120 Cal.App. Supp. 767 , 770 ( Garcia )

. ) Applying this standard, our courts have generally held that subdivision (a)(5)
authorizes the P eople to appeal orders that affect the defendant’s sentence or the timing
of his or her release . ( See People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2 [ order staying sentence pursuant to section 654 ]; People v . Warner (1978) 20 Cal.3d 678, 681

- 682 , superseded by statue on other grounds as stated in People v. Douglas (1999) 20 Cal.4th 85, 92 fn. 6 [ order granting probation ]; People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 987

- 988 [order finding d efendant eligible to be resentenced under newly

- adopted three strikes sentencing scheme]; People v. Lo (1996) 42 Cal.App.4th 189, 196 [order “refusing to resentence” defendant after Youthful Offenders Parole B oard found him inappropriate candidate for trea tment by t he California Youth Authority] ; McGuire, supra , 14 Cal.App.4th at p. 700 [ order granting bail pending appeal ]; People v. Minjarez (1980) 102 Cal.App.3d 309, 311

- 312 [ order erroneously granting a defendant custody credits against his or her prison sentence ] ; Daudert v. Peopl e (1979) 94 Cal.App.3d 580, 582

- 585 [ appeal of order granting certificate of rehabilitation issued to a defendant before the period of rehabilitation required by law ha d been completed ].) The
subdivision has also been found to authorize the appeal of orders that do not directly

3 The part ies’ appellate briefs do not address whether the trial court’s section 1485.55 order, issued after Anthony’s criminal judgment was vacated in the habeas proceedings and his criminal charges dismissed, qualifies as an order “ made after judgment ” within the meaning of section 1238, sub division (a)(5). Instead, their briefs address only whether the order affected a substantial right of the People. For the purposes of this appeal, we will assume without deciding that the order is one “made after judgment .”9

affect a criminal judgment, but impact the prosecution’s ability to carry out “ their prosecutorial duties in the future.” ( Benavides, supra , 99 Cal. App. 4th at p. 106.)
T he subdivision is inapplicable to orders that “ relate [] to a matter collateral to the underlying criminal case .” ( Leonard, supra , 97 Cal.App.4th at p. 1300.) For example, i n Leonard, supra
, 97 Cal.App.4th 1297, the P eople appealed the denial of a post

- conviction
motion seeking to bar th e defendant from c ontacting jurors “ without first obtaining court approval and establishing good cause .” ( Id . at p. 1299.) The defendant asserted that the
order was “ not appealable because it d [ i d] not affect the enforcement of the judgment or prevent fu rther prosecution of the case against respondent. ” ( Id . at p. 1300.) The appellate court agreed, explaining: “ The order denying the People’ s request for a no

contact order does not affect their substantial rights. Such an order relates to a matter
coll ateral to the underlying criminal case

. . . . While the legal issue raised by the People may be of great theoretical importance to them, the order issued by the trial court

. . . in no way affects the judgment, its enforcem ent, nor does it hamper further p rosecution. Accordingly, we find the order nonappealable. ” ( Ibid .; see also Benavides, supra , 99 Cal.App. 4th 100 [agreeing with Leonard’s conclusion that a post

- conviction order denying the P eople’s request for a no

- contact order is not appealable under subdivision (a)(5)].)
In Garcia, supra , 120 Cal.App.Supp. 767, the a ppellate d epartment of the superior

court ruled that a n order entered after an acquittal requiring the police department to

return the defendant’s property was not appealable under subdi vision (a)(5) . The court explained: “[To affect the substantial rights of the P eople, the order] must in some way affect the judgment or its enforcement or hamper the further prosecution of the particular proceeding in which it is made. [Ci t ation.] The order complained of here is not of that
character. . . . [A] proceeding by the owner to recover possession of property unlawfully seized is independent of the criminal proceeding in which [the property] is sought to [be]

use [d] . . . as evidence . . . . [W ] e cannot see how a ruling made after judgment on

. . . a motion [to recover unlawfully seized property] can affect the substantial rights of the10

People in the criminal action, or be regarded as an order made in the course of such
action. ” ( Id

. at p. 770. )
I n this case, the district attorney effectively concedes that the challenged order has
ha d no impact on Anthony’s underlying criminal judgment. In 2011, the trial court issued a writ of habeas corpus that “vacated and set aside” his conviction . The P e ople did not appeal that order ( s ee § 1506 [ authorizing the P eople to appeal a grant of habeas
relief ] ) and elected not to retry Anthony. 4 The criminal charges against Anthony were
thereafter dismissed on November 18, 2011 . (See § 1237 , subd. (a)(2).) T h us, as the district attorney explained at the section 1485.55 hearing, “ as of November

. . . 2011, th e criminal case ceased to exist. [¶]

. . . [¶] [ Anthony’s ] rights under the Penal Code have already been fully adjudicated and that adjudication is comple te, at least in this proceeding and has been for over two years.” Given these facts, it is clear that the section
1485.55 order has had no effect on Anthony’s criminal judgment, which was vacated years before the order was issued.
Nor has the district attorney ident ified any way in which the section 1485.55 order might hamper its ability to prosecute this or any other criminal matter in the future

. In its reply brief, the district attorney states that while the section 1485.55 order “may (potentially) affect further prosecution,” that issue is “not addressed by this appeal and is therefore not explored further.” We treat this statement as a concession that the district attorney has elected to forego any argument related to the order’s potential effects on a future prosecution. Although the court’s order has had no identifiable effect on Anthony’s now

vacated judgment or his future prosecution, the district attorney argues that the order is appealable under subdivision (a)(5) because it “ eliminate s th e People’s right to a contested hearing pursuant to section 4900 . . . before the [ b oard].” As stated in the
district attorney ’s reply brief, t he section 1485.55 order “ triggered [Anthony’s] right to

4 Because this proceeding t ook place after the time to appeal the habeas corpus ruling had expired, we express no opinion as to whether an appeal challenging both the habeas and the finding of actual innocence would lie.11

directly receive compensation under section 4903 withou t an administrative hearing, and therefore the ruling affects a substantial right of the People.”
C ontrary to the district attorney’s suggestion , the trial court ’s order did not
eliminate t he P eople ’s right to a hearing on the question of Anthony ’s factu al innocence. The People litigated that issue at length during the habeas proceedings. The y had a second opportunity to address the issue under the preponderance standard at Anthony’s
section 1485 .55 motion hearing

. During that hearing , Anthony was requ ired to prove his claim of factual innocence under the same burden of persuasion that w ould have been applicable at a hearing before the board. (See § 1485.55, subds. (b) & (d); Diola , supra, 135 Cal.App.3d at p. 588, fn

. 7 [ “To prevail [in a hearing befo re the board, the] claimant must carry the burden of proof of innocence by a preponderance of the evidence”].) Th e trial court’s order therefore did not o perate in a manner that denied the district attorney a hearing on the issue of factual innocence. In stead, the order merely provided the district attorney a different venue and trier of fact for the hearing : the trial court rat her than the
b oard

. The district attorney has pointed to no authority suggesting the People have a ny right (substantial or othe rwise) to hav e the b oard, rather than the trial court, determine the question of Anthony’s factual innocence

. As in Leonard and Garcia , the order at issue here relates solely “ to a matter collateral to the underlying criminal case .” ( Leonard, supra , 97 Cal.App.4th at p. 1300.) Specifically, the order makes a factual finding that facilitates Anthony’s ability to obtain compensation for his erroneous judgment of conviction, which was set aside years ago.
Because the order neither affects the u nderlying j udgment nor has any e ffect on the prosecution’s ability to carry out its functions, it is not appealable under section 1238, subdivision (a)(5)

. 5

5 The district attorney’s reply brief contains a single sente nce asserting that the “instant case is additionally appealable under [section 1238, subdivision (a)(8)] as well.” The conclusory assertion is not accompanied by any legal analysis explaining why the order is actually appealable under subdivision (a)(8). Accordingly, we need not address the issue. (See, e.g., In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [treating contentions not supported by “cogent legal argument or citation of authority” as12

O ur conclusion that a section 1485.55 order is not appealable by the People is underlined by section 851.8, w hich specifically authorizes the P eople to appeal a finding
of factual innocence in a different context. Section 851.8 allows a person who is arrested
of a crime for which he or she is never convicted to file a petition for a judicial
determination of fac tual innocence. If the court finds the “arrestee factually innocent” it must order the relevant law enforcement agencies to seal the arrest records for three years and then destroy them. (See § 851.8, subds. (b), (c) & (d).) Subdivision (p) of the statu te specifically provides that any such ruling is appealable. (See People v. Adair (2003) 29 Cal.4th 895, 904 [ trial court’s finding of factual innocence under section 851.8 i s appealable pursuant to subdivision (p) ] .) In its opening appellate brief, the district attorney acknowledges that “in both its construction and its intent, section 851.8 is
similar to new section 1485.55.” However, the prosecution overlooks a key difference
between the statutes: one authorizes an appeal and the other does not. Gi ven the related subject matter of the two statutes, we agree with Anthony that the presence of an appeal provision in section 851.8 and the absence of any such provision in section 1485.55
indicates that the L egislature did not intend orders issued under s ection 1485.55 to be appealable. (See People v. Arriaga (2014) 58 Cal.4th 950, 960 [“It is a settled principle of statutory interpretation that if a statute contains a provision regard ing one subject, that

waived]; Crowley Maritime Corp. v. Boston Old Colony Ins. Co

. (2008) 158 Cal.App.4th 1061, 1072 [points raised for first time in reply brief will generally not be considered] ; Newell v. Brawner (1956) 140 Cal.App.2d 523, 527 [“ As a rule, points raised for the first time in a reply brief need not b e considered by the court and in view of the inadequate presentation of the point we are not inclined to depart from the rule ”] .) Even if the district attorney had properly raised the argument, subdivision (a)(8) does not apply here. The subdivision auth orizes the People to appeal “[a] n order or judgment dismissing or otherwise terminating all or any portion of the action including such an order or judgment after a verdict or finding of guilty or an order or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy .” The court’s order finding that Anthony had proved his factual innocence by a preponderance of the evidence did not dismiss or terminate any portion of his criminal case, which had been dismis sed long before he ever filed his compensation claim.13

provision’ s omission in the same or another statu te regarding a related subject is evidence of a different legislative intent ”].) The district attorney alternatively contends that even if the order is not appealable under any provision of section 1238, we may nonetheless review portions of the trial

cou rt’s order pursuant to section 1235, which states: “ (a) Either party to a felony case may appeal on questions of law alon e, as prescribed in this title and in rule s adopted by the Judicial Council . . . (b) An appeal from the judgment or appealable order in a felon y

case is to the court of appeal for the district in which the court from which the appeal is taken is located.” The district attorney asserts that subdivision (a) of section 1235 permits either party to a criminal proceeding to appeal any orde r involving a “ question of
law. ” It further contends that whether section 1485.55 applies retroactively to Anthony’s case is a “pure question of law” and therefore appealable under section 1235, subdivision (a). This argument misconstrues the meaning of section 1235 . The statute does not purport to describe the types of judgments or orders that parties to a criminal proceeding

may appeal

. It merely serves to clarify that “[a] ppeals

. . . in criminal cases do not lie from the verdict of a jury or from th e finding of a judge upon controverted questions of
fact .” ( People v. Pastrana (1955) 136 Cal.App.2d 358, 359

- 360 .) In other words,
section 1235 describes t he type of issues the parties may raise in an appeal from an appealable order . S ection 1238 , on t he other hand, describes the categories of orders that are actually appealable by the P eople

. ( Chacon, supra
, 40 Cal.4th at p. 564 [“T he circumstances allowing a People’s appeal are enumerated in section 1238 ” ] ; Drake,

supra , 19 Cal.3d at p. 754 .)
Becaus e the district attorney has failed to identify any statute that authorizes an appeal of the trial court’s order, we dismiss the appeal for lack of jurisdiction

. 6

6 The district attorney has not requested t hat we treat the People’s appeal as a petition for an extraordinary writ of mandate. Accordingly, we express no opinion whether the issues raised in this appeal would be reviewable in a writ proceeding. (See14 DISPOSITION
The appeal is dismissed.

ZELON, J.

We concur:

PERLUSS, P. J.

FEU E R, J. 

generally People v. Superior Court (Stanley) ( 1979) 24 Cal.3d 622, 625

- 626 [“ If the prosecution has not been granted by statute a right to appeal, review of any alleged error may be sought by a petition for writ of mandate only when a trial court has acted in excess of its jurisdiction and the need fo r such review outweighs the risk of harassment of the accused ”].)

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.