Filed 7/15/22 P. v. Brown CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Patricia J. Titus, Judge. Dismissed.

Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

INTRODUCTION

At the conclusion of a preliminary hearing on charges against appellant Andre Brown, the trial court issued a prejudgment protective order under Penal Code section 136.2, prohibiting appellant from, inter alia, having contact with the victim during the pendency of the proceedings.[1] Appellant filed a notice of appeal from the prejudgment protective order. His appointed appellate counsel filed a brief acknowledging this matter had not yet proceeded to judgment, raising no issues, and asking this court to independently review the record for error under People v. Wende (1979) 25 Cal.3d 436 (Wende). We dismiss the appeal for lack of an appealable order.

BACKGROUND

In July 2021, appellant Andre Brown was charged with one count of attempted carjacking and one count of second degree robbery. In August 2021, at the preliminary hearing, the victim testified: (1) in committing the charged offenses, appellant pushed the victim to the ground, put his (appellant’s) foot on the victim’s shoulder, and threatened the victim; and (2) the victim had seen appellant around his (the victim’s) neighborhood around two times before. At the conclusion of the hearing, at the prosecutor’s request, the trial court issued a prejudgment protective order under section 136.2, designating the victim as the protected person and prohibiting appellant from, inter alia, having contact with the victim during the pendency of the proceedings.[2]

Two weeks later, appellant filed a notice of appeal from the prejudgment protective order. In March 2022, appellant’s appointed appellate counsel filed a brief acknowledging this matter had not yet proceeded to judgment, raising no issues, and asking this court to independently review the record for error under Wende, supra, 25 Cal.3d 436. In an attached declaration, counsel declared: (1) she had communicated with appellant about the case; and (2) she had written to appellant at his current address in Hawthorne and at the office of his assigned deputy public defender, providing copies of her brief and the appellate record, and informing appellant of his right to file a supplemental brief. This court subsequently sent notice of appellant’s right to file a supplemental brief, along with an order to appellant’s counsel to send appellant copies of her brief and the appellate record, to appellant’s counsel and to appellant’s Hawthorne address.[3] We have not received a supplemental brief or any other submission from appellant.

DISCUSSION

We conclude we must dismiss the appeal because the prejudgment protective order under section 136.2 is not appealable. “The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute. [Citations.] Appeals by criminal defendants are governed by section 1237 . . . .” (People v. Loper (2015) 60 Cal.4th 1155, 1159.) Section 1237 does not make appealable a prejudgment protective order under section 136.2. On the contrary, section 1237 authorizes a criminal defendant to appeal only from a final judgment of conviction or from a postjudgment order affecting the defendant’s substantial rights. (§ 1237.) Here, the record contains no final judgment of conviction and therefore no postjudgment order.

The brief filed by appellant’s counsel -- which, as noted, raises no issues -- does not contend the prejudgment protective order is appealable, but does cite the rule of court providing, “A notice of appeal is premature if filed before the judgment is rendered or the order is made, but the reviewing court may treat the notice as filed immediately after the rendition of judgment or the making of the order.” (Cal. Rules of Court, rule 8.406(d).) The rule does not apply to appellant’s notice of appeal, which was filed after the order being appealed was made. In any event, the rule does not purport to authorize an appeal from an order not made appealable by statute. (See People v. Loper, supra, 60 Cal.4th at 1159.) Having concluded there is no statutory authority for this appeal from the prejudgment protective order under section 136.2, we dismiss the appeal.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS.

MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.

[1] Undesignated statutory references are to the Penal Code.

[2] Section 136.2 provides that “[u]pon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, a court with jurisdiction over a criminal matter may issue” specified orders, including an order prohibiting the defendant from contacting the victim or witness. (§ 136.2, subd. (a)(1).) With the exception of orders issued at sentencing under section 136.2, subdivision (i), protective orders issued under section 136.2 are “‘“operative only during the pendency of criminal proceedings and as prejudgment orders.”’” (People v. Corrales (2020) 46 Cal.App.5th 283, 286.)

[3] The notice to appellant’s Hawthorne address was returned to sender as undeliverable. Neither appellant nor his counsel has notified this court of a change in his address.