People v. Cervantes CA2/7

INTRODUCTION

Francisco Cervantes appeals from the denial of his motion for reconsideration of the superior court’s resentencing order under Penal Code section 1172.75. We lack jurisdiction to consider Cervantes’s appeal because he appealed from a nonappealable order. Accordingly, we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND1

A. The Original Sentence In 2019, Cervantes was convicted of two counts of first degree burglary (Pen. Code, § 459), and the jury found true that the offenses were committed for the benefit of a criminal street gang (§ 186.22(b)(1)(B)).2 Cervantes admitted three prior prison terms (§ 667.5, subd. (b)). The court sentenced Cervantes to a total of 15 years 4 months in state prison, comprised of: for count 1, the upper term of six years, plus a consecutive five-year term for the gang enhancement and a consecutive three-year term for the three one-year prior prison term enhancements; for count 2, a consecutive 16-month term (one-third the middle term of 48 months) plus a concurrent term of five years for the gang enhancement.

B. Resentencing Pursuant to Section 1172.75 On August 17, 2022, the superior court recalled the 2019 sentence in…