Filed 5/31/16
                      CERTIFIED FOR PARTIAL PUBLICATION*



             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                   DIVISION THREE


STEVEN EDWARD GRAY,                                     B269150

        Petitioner,                                     (Los Angeles County
                                                        Super. Ct. Nos. BR051917
        v.                                                              & C165383)

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

        Respondent;

THE PEOPLE,

        Real Party in Interest.



        ORIGINAL PROCEEDINGS in mandate. Sanjay T. Kumar, Acting Presiding
Judge, Alex Ricciardulli and Barbara R. Johnson, Judges. Petition denied.
        Law Offices of Sherman M. Ellison and Sherman M. Ellison; Wilson, Elser,
Moskowitz, Edelman & Dicker and Robert Cooper for Petitioner.
        R. A. Baylis & Associates and R. Allen Baylis for Richard Meadows as
Amicus Curiae on behalf of Petitioner.



*
        Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of section B of the Discussion.
       D. Scott Elliot for Viktors Andris Rekte as Amicus Curiae on behalf of
Petitioner.
       Law Offices of John J. Jackman and John J. Jackman for Carmen Goldsmith as
Amicus Curiae on behalf of Petitioner.
       KPC (Knapp Petersen Clarke) Legal Audit Services Inc. and André E. Jardini as
Amicus Curiae on behalf of Petitioner.
       Peter Winkler for Melinda Daugherty as Amicus Curiae on behalf of Petitioner.
       No appearance for Respondent.
       Dapeer, Rosenblit & Litvak, William Litvak and Caroline K. Castillo for Real
Party in Interest.


                     _______________________________________




                                           2
                                    INTRODUCTION
       Petitioner Steven Edward Gray seeks review of an order of the Appellate
Division of the Los Angeles Superior Court dismissing his appeal and denying his
alternative request to treat his defective appeal as a petition for writ of mandate. We
agree with the Appellate Division‟s determination that the order of the trial court
denying Gray‟s request for attorney‟s fees under Code of Civil Procedure
section 1021.5 (the private attorney general statute) is not appealable under Penal Code1
section 1466, subdivision (b)(2), because the order does not affect Gray‟s substantial
rights. Further, Gray fails to establish that any exceptional circumstances required the
Appellate Division to treat his appeal as a petition for extraordinary relief. Accordingly,
we deny the petition.
                                     BACKGROUND
       In the underlying traffic infraction proceeding, Gray was convicted of failing to
stop at a red light in violation of Vehicle Code section 21453, subdivision (a). Gray‟s
infraction was captured by an automated camera used for traffic enforcement. Gray
challenged his conviction by arguing the city failed to comply with Vehicle Code
section 21455.5, subdivision (a), which required the city to publicly announce the
installation of the camera and to issue warnings (rather than citations) for the first
30 days following the installation. The Supreme Court issued a published decision
adopting Gray‟s arguments in part, though it affirmed his conviction. (People v. Gray
(2014) 58 Cal.4th 901.)
       Gray subsequently filed a motion in the superior court seeking attorney‟s fees
under Code of Civil Procedure section 1021.5, the private attorney general statute. The
trial court denied the motion, citing Fogelson v. Municipal Court (1981)
120 Cal.App.3d 858, for the proposition that attorney‟s fees are generally not
recoverable in a criminal case under the private attorney general statute. Gray appealed
the order to the Appellate Division.

1
       All further undesignated section references are to the Penal Code.


                                              3
       The Appellate Division requested supplemental briefing from the parties
regarding the appealability of the order denying the fee request under section 1466,
subdivision (b)(2), which provides a defendant in an infraction case with the right to
appeal “any order made after judgment affecting his or her substantial rights.” (§ 1466,
subd. (b)(2).) Gray asserted the order was appealable and suggested in passing that if
the Appellate Division concluded the order was not appealable, it should exercise its
discretion to treat his appeal as a petition for writ of mandate. The Appellate Division
concluded the denial of attorney‟s fees did not affect Gray‟s substantial rights, and
therefore the court‟s order was not appealable under section 1466, subdivision (b)(2).
The Appellate Division further determined no usual or exceptional circumstances
existed which warranted treating Gray‟s defective appeal as a petition for writ of
mandate. Accordingly, the Appellate Division dismissed Gray‟s appeal.
       Gray filed the instant petition for writ of mandate seeking an order directing the
Appellate Division to instruct the trial court to grant his motion for attorney‟s fees.
                                     CONTENTIONS
       Gray contends the Appellate Division erred by concluding the court‟s order
denying his request for attorney‟s fees was not appealable under section 1466,
subdivision (b)(2). In the alternative, Gray contends the Appellate Division abused its
discretion by failing to treat his defective appeal as a petition for writ of mandate.2




2
       Where a case is transferred from the Appellate Division to this court, we review
the decision of the trial court. (See § 1471.) However, the issue before us in this
original proceeding is more limited; we consider only whether the Appellate Division
properly dismissed Gray‟s appeal. Thus, although Gray presents a colorable argument
as to why a defendant in a criminal infraction case might, under some limited
circumstances, be entitled to recover attorney‟s fees under Code of Civil Procedure
section 1021.5, we do not address the merits of that contention as it is not properly
before us.


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                                      DISCUSSION
       A.     The Order Denying the Motion for Attorney’s Fees Is Not
              Appealable Under Penal Code Section 1466, subdivision (b)(2).

       Gray contends the order denying his request for attorney‟s fees is appealable
under section 1466, subdivision (b)(2), and that therefore the Appellate Division erred
by dismissing his appeal. We disagree.
       “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.”
(People v. Loper (2015) 60 Cal.4th 1155, 1159 (Loper).) An appeal by a defendant in
a criminal infraction case is governed by section 1466, subdivision (b), which
authorizes, as relevant here, an appeal “[f]rom any order made after judgment affecting
his or her substantial rights.” (§ 1466, subd. (b)(2).) Citing two civil cases, Gray
asserts that “a request for fees by a defendant necessarily entails the substantial rights of
the defendant,” and is therefore appealable. But although the authorities Gray cites for
that proposition use the phrase “substantial rights,” they are inapposite here. (See Save
Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th 1745,
1750-1751 [considering whether “ „substantial rights‟ ” of the litigants would be
affected by the court‟s decision in order to evaluate mootness]; Flannery v. Prentice
(2001) 26 Cal.4th 572, 596 (dis. opn. of Kennard, J.) [referring to cases holding that
“party,” when used in a statute, does not refer to both the party and his or her attorney
where “the substantial rights of the litigants themselves” are implicated].) We also find
unpersuasive Gray‟s analogy to civil cases holding that postjudgment orders awarding
or denying attorney‟s fees are appealable. As noted, the right to appeal is statutory and
the pertinent civil statute (Code of Civil Procedure section 904.1, subdivision (a)(2))
authorizes an appeal from orders made after final judgment, irrespective of whether
a party‟s substantial rights are affected.3 (Code Civ. Proc., § 904.1, subd. (a)(2)

3
       Similarly, we reject Gray‟s argument that his attorney has an independent right to
appeal the order denying the motion for attorney‟s fees, as that argument also relies on
inapposite civil cases.

                                              5
[authorizing appeal from “an order made after a judgment made appealable by
paragraph (1),” i.e., after a final judgment].) Finally, we reject the People‟s contention
that the order denying Gray‟s request for attorney‟s fees is not appealable because Gray
is not entitled to recover attorney‟s fees, as this circular argument conflating success on
the merits with appealability has been resoundingly rejected by the Supreme Court.
(See Teal v. Superior Court (2014) 60 Cal.4th 595, 599-601 (Teal).)
       Thus unaided by the parties, we consider the meaning of “substantial rights,” as
that term is used in section 1466, subdivision (b)(2), and rely in large part upon cases
interpreting the similar provision found in section 1237, subdivision (b), which relates
to felony appeals. (See § 1237, subd. (b) [“[a]n appeal may be taken by the
defendant . . . [f]rom any order made after judgment, affecting the substantial rights of
the party”].) Unfortunately for our purposes, neither section 1466 nor section 1237
defines “substantial rights.” Further, and as the Supreme Court recently observed, “our
cases do not provide a comprehensive interpretation of the term „substantial rights‟ ” as
used in these sections. (Loper, supra, 60 Cal.4th at p. 1161, fn. 3.)
       It is plain that a defendant‟s “substantial rights” include personal liberty interests.
(See, e.g., Loper, supra, 60 Cal.4th at p. 1161, fn. 3 [holding defendant‟s substantial
interest in personal liberty implicated by court‟s denial of request for compassionate
release from prison due to terminal illness]; Teal, supra, 60 Cal.4th at p. 601 [holding
resentencing provision of Three Strikes Law creates substantial right affecting personal
liberty interest]; People v. Coleman (1975) 13 Cal.3d 867, 871, fn. 1 [holding order
revoking probation affected defendant‟s substantial rights]; People v. Herrera (1998)
66 Cal.App.4th 1149, 1152, disapproved on other grounds by People v. Cheek (2001)
25 Cal.4th 894, 903 [holding defendant‟s personal liberty interest implicated by denial
of request for outpatient release from commitment to mental health department]; see
also People v. Totari (2002) 28 Cal.4th 876, 886-887 [holding denial of motion to
vacate conviction appealable under section 1237, subdivision (b), because basis of
motion was noncitizen defendant‟s substantial right to complete advisement of
immigration consequences prior to entry of plea].) In addition, a criminal defendant‟s


                                              6
obligation to pay victim restitution for losses caused by the defendant‟s criminal
conduct (Cal. Const., Art. I, § 28(b)(13)(A), (B); § 1202.4) has been said to affect the
defendant‟s substantial rights. (See, e.g., People v. Ford (2015) 61 Cal.4th 282, 286
[“the court‟s order of [victim restitution] was appealable, as it was made after judgment
and affected defendant‟s substantial rights”]; People v. Jennings (2005)
128 Cal.App.4th 42, 49 [indicating postjudgment order denying defendant‟s request to
reduce victim restitution obligation was appealable under section 1237, subdivision (b)];
People v. DiMora (1992) 10 Cal.App.4th 1545, 1550 [noting defendant‟s right to appeal
order setting amount of victim restitution].)
       By contrast, courts generally do not find a defendant‟s substantial rights are
implicated when a postjudgment order merely deprives the defendant of personal
property. On this point, People v. Tuttle (1966) 242 Cal.App.2d 883 (Tuttle), is
instructive. There, the defendant was charged and convicted of forgery. (Id. at p. 884.)
At the time of his arrest, police confiscated items of the defendant‟s personal property,
including $726.56 in cash, cartons of cigarettes, and several bottles of liquor. (Ibid.)
The prosecution introduced some of these items as exhibits during the trial; the police
retained other items. (Ibid.) Following his conviction, the defendant filed a motion
seeking to recover his property. (Ibid.) After the trial court denied the motion, the
defendant attempted to appeal that decision. (Ibid.) The court of appeal dismissed the
appeal, noting the defendant‟s request for return of the exhibits used at trial did “not
affect any substantial right which was a subject of that action. The proceeding resulting
in such an order is entirely separate from the criminal proceeding as such because it
does not involve in any manner the charge against defendant or his rights as affected by
that charge.” (Id. at p. 885; see also People v. Gershenhorn (1964) 225 Cal.App.2d 122
(Gershenhorn) [noting “a motion for return of property is a separate procedure from the
criminal trial” and “an order of denial [for return of the defendant‟s property] is not
among any of the matters for which an appeal is provided by section 1237”]; People v.
Hopkins (2009) 171 Cal.App.4th 305, 308-309 [following Gershenhorn]; cf. People v.
Beck (1994) 25 Cal.App.4th 1095, 1104 [confirming general rule stated in Tuttle, but


                                                7
holding order denying return of firearms confiscated under former section 12028, which
required proof firearm was used in the commission of a drug-related offense, was
appealable because defendant‟s due process rights were at issue].)
       The proceeding that produced the order denying Gray‟s motion for attorney‟s
fees under section 1021.5, like the proceedings in Tuttle and Gershenhorn, was
a separate and distinct proceeding from the prosecution of his traffic infraction. Also,
Gray sought to recover property—in this case, money—he claimed was rightfully his,
like the defendants in Tuttle and Gershenhorn. And in his motion for attorney‟s fees,
Gray did not challenge any aspect of the criminal prosecution, his conviction, the
punishment, or the obligations imposed upon him as a result of his conviction, as
occurred in the cases holding that the defendant‟s substantial rights were at issue. We
therefore agree with the Appellate Division‟s conclusion that the denial of a request for
attorney‟s fees, like the denial of a defendant‟s request to recover other personal
property, does not affect a defendant‟s substantial rights within the meaning of
section 1466, subdivision (b)(2). Accordingly, the Appellate Division properly
concluded that the court‟s order was not appealable.
       B.     The Appellate Division Was Not Required to Treat Gray’s
              Defective Appeal as a Petition for Extraordinary Relief.

       In the alternative, Gray argues that if the order denying his request for fees was
not appealable, then the Appellate Division erred by refusing to treat his defective
appeal as a petition for writ of mandate. Again, we disagree.
       Although appellate courts have discretion to undertake review of a nonappealable
order by treating an attempted appeal as a petition for extraordinary relief, the Supreme
Court has emphasized we should only exercise that power in “unusual circumstances.”
(See Olson v. Cory (1983) 35 Cal.3d 390, 401.) Gray‟s sole contention, both before the
Appellate Division and before this court, is that the Appellate Division should have
exercised its discretion to treat his defective appeal as a petition for extraordinary relief
because his attempted appeal was timely. In so arguing, Gray relies on the well-settled
proposition that, in most circumstances, a party who fails to timely appeal from an


                                              8
appealable judgment or order is barred from seeking review by way of a petition for
extraordinary relief. (See, e.g., Leach v. Superior Court (1932) 215 Cal. 531, 534;
Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1459-1460.) Contrary to Gray‟s
argument, however, the converse principle does not follow; the filing of a timely
(though defective) appeal is not, standing alone, an unusual circumstance which would
compel (or even justify) a court to treat his defective appeal as a petition for
extraordinary relief.
       In the proceedings before the Appellate Division, Gray failed to articulate any
unusual circumstance which would support a decision to treat his appeal as a writ
petition. But given that Gray presented a colorable argument as to why a criminal
defendant in an infraction case might, in some limited circumstances, be entitled to
attorney‟s fees under the private attorney general statute, the Appellate Division would
have acted within the bounds of its discretion if it had decided to treat Gray‟s defective
appeal as a petition for extraordinary relief. However, on this record—and particularly
where Gray failed to offer the Appellate Division any compelling argument on point—
we cannot say the Appellate Division abused its discretion by refusing to do so.




                                              9
                              DISPOSITION
    The petition is denied.


    CERTIFIED FOR PARTIAL PUBLICATION




                                            LAVIN, J.

WE CONCUR:




    EDMON, P. J.




    ALDRICH, J.




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