People v. Soto CA2/3

DISCUSSION

1. The order under review is appealable. Both parties acknowledge that the Courts of Appeal are divided on this issue and that it is currently under consideration by our Supreme Court. People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, and People v. Wortham (2013) 220 Cal.App.4th 1018, held an order finding the defendant ineligible for resentencing to be appealable and People v. Leggett (2013) 219 Cal.App.4th 846 and Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, held to the contrary. In People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1294-1295 (Kaulick), this Court held that the People could appeal from an order resentencing a defendant pursuant to subdivision (f) of section 1170.126. Although Kaulick is distinguishable because it involved an appeal by the People from a modification of the original sentence, we noted in that decision that the order resentencing the defendant qualified as an “order made after judgment, affecting the substantial rights of the [P]eople” under subdivision (a)(5) of section 1238 and was therefore appealable.2 (Kaulick, supra, 215 Cal.App. 4th at p. 1294.) The…