People v. Little CA2/7

Opinion

Filed 9/8/26 P. v. Little CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B345340

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA133341) v.

MARK ANTHONY LITTLE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. Reversed and remanded with directions. Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent. _______________ Mark Anthony Little appeals from an order denying his motion for recall and resentencing under Penal Code section 1172.751 after the trial court found Little was not entitled to resentencing because the abstract of judgment from his 2018 resentencing did not reflect imposition of prior prison term enhancements under section 667.5, former subdivision (b) (section 667.5(b) enhancement). Little contends, the People concede, and we agree that at Little’s 2018 resentencing the trial court imposed two section 667.5(b) enhancements. We therefore reverse the court’s March 24, 2025 order denying Little’s petition for recall and resentencing and remand for the trial court to grant the petition and resentence Little.

FACTUAL AND PROCEDURAL BACKGROUND

In 2015 a jury convicted Little of the first degree murder of his ex-girlfriend (§ 187, subd. (a); count 1). In addition, with respect to five separate prior acts of domestic violence, Little was convicted of two counts of corporal injury to a spouse or cohabitant (§ 273.5, subd. (a); counts 2 & 7), two counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); counts 3 & 8), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count 4), misdemeanor battery (§ 243, subd. (e)(1); count 5), and making a criminal threat (§ 422, subd. (a); count 6).

1 Further statutory references are to the Penal Code.

2 In July 2015 the trial court sentenced Little to an aggregate term of 71 years eight months to life in state prison. The sentence included 25 years to life on count 1 for murder, doubled under the three strikes law (§§ 667, subds. (a)(1), (b)-(i)), plus one year for personal use of a deadly weapon in the commission of the murder (§ 12022, subd. (b)(1)). The court imposed a determinate term of eight years eight months on the remaining counts. As part of the sentence, the court imposed 10 years for two prior serious felony convictions (§ 667, subd. (a)(1)) and two 1-year terms for the section 667.5(b) enhancements. In 2018 we reversed Little’s convictions on counts 4, 6, and 8, affirmed the judgment as to the remaining counts, and remanded for resentencing. (People v. Little (Mar. 26, 2018, B265699) [nonpub. opn.] (Little I).) On October 3, 2018 the trial court held a resentencing hearing and granted the prosecution’s motion to dismiss counts 4, 6, and 8. The court did not modify the sentence as to any other counts. The court then orally pronounced judgment, stating, “Defendant’s sentence remains as to the other counts as stated, and his total time is now 67 years. 67 years is his total commitment to state prison and an amended abstract to be sent to Department of Correction, Rehabilitation.”2 However, the minute order from October 3 incorrectly stated (without explanation) that the “dismissal of these three counts reduces the sentence to 64 years instead of 71 years and 8 months.”

2 In light of the 51-years-to-life sentence imposed on the murder count, we assume the trial court was referring to the total indeterminate sentence of 67 years to life.

3 The amended abstract of judgment filed on October 22, 2018 reflects the sentences on count 1, 2, 3, and 7, plus the two sentence enhancements under section 667, subdivision (a)(1). The abstract of judgment states the total sentence was 51 years to life on the murder count plus 13 years (for the determinate terms plus two 5-year enhancements), consistent with the minute order (64 years to life) but not the oral pronouncement of judgment (67 years to life). Further, the abstract does not reflect the two section 667.5(b) enhancements imposed by the trial court. In January 2023 the trial court received a notice from the California Department of Corrections and Rehabilitation (CDCR) stating that Little may be eligible for recall and resentencing under section 1172.75. On January 17 the court stated it had reviewed the case file and verified that the court had previously imposed section 667.5(b) enhancements, and therefore Little was eligible for recall and resentencing under section 1172.75. The court appointed counsel for Little. On October 10, 2024 Little, represented by counsel, filed a motion under section 1172.75 to recall the sentence and resentence him. Little argued the trial court should strike the two now-invalid prior prison term enhancements, dismiss in the interests of justice Little’s prior strike conviction and two 5-year prior serious felony enhancements, and resentence Little to an aggregate term of 27 years to life. At the March 17, 2025 resentencing hearing, Little’s counsel argued that Little was eligible for resentencing under section 1172.75 notwithstanding the fact the 2018 abstract of judgment did not reflect imposition of any section 667.5(b) enhancements. Counsel explained that the trial court imposed the two enhancements at the 2015 sentencing and on appeal this 4 court “did not touch” the enhancements (only reversing three counts). The prosecutor responded that at the 2018 sentencing the court did not reimpose the section 667.5(b) enhancements, resulting in the sentence of 64 years to life. Little was therefore not eligible for resentencing under section 1172.75. The court took the matter under submission. At a further hearing on March 24, 2025, the trial court denied Little’s motion for resentencing. The court explained that the abstract of judgment did not include “time imposed pursuant to . . . section 667.5(b).” Thus, “there is no legal basis which allows this Court to now recall and resentence [Little] pursuant to” section 1172.75. Little timely appealed.

DISCUSSION

A. Section 1172.75 and Standard of Review “Before 2020, the Penal Code instructed criminal sentencing courts to ‘impose a one-year term for each prior separate prison term or county jail term’ the defendant had previously served for a felony.” (People v. Rhodius (2025) 17 Cal.5th 1050, 1053 (Rhodius), citing § 667.5 (b).) Effective January 1, 2020, the Legislature eliminated one-year prior prison term enhancements except in cases involving prior terms for sexually violent offenses. (Rhodius, at p. 1053.) In 2021 the Legislature enacted section 1172.75, which “made the change retroactive.” (Rhodius, at pp. 1053-1054; see § 1172.75, subd. (a) [“Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.”].)

5 In section 1172.75, subdivision (b), “the Legislature established a mechanism for resentencing individuals ‘currently serving a term for a judgment that includes’ such an enhancement.” (Rhodius, supra, 17 Cal.5th at p. 1054.) Section 1172.75, subdivision (b), requires CDCR to identify for the sentencing courts all persons “currently serving a term for a judgment that includes an enhancement described in subdivision (a).” Further, if a sentencing court verifies that a defendant was sentenced under an invalid enhancement, the court “shall recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c).) “[W]here section 1172.75 applies, it requires full resentencing.” (Rhodius, supra, 17 Cal.5th at p. 1067, fn. 3; see People v. Garcia (2024) 101 Cal.App.5th 848, 855 [“‘[By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly “invalid” enhancements.’”].) Section 1172.75, subdivision (d)(1), states the resentencing “shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety,” and further, resentencing “shall not result in a longer sentence than the one originally imposed.” We generally review a trial court’s decision under section 1172.75 for an abuse of discretion. (People v. Mathis (2025) 111 Cal.App.5th 359, 366, review granted Aug. 13, 2025, S291628; see People v. Garcia, supra, 101 Cal.App.5th at pp. 855- 856.) Under an abuse of discretion standard, we review the trial court’s findings of fact for substantial evidence, consider whether the court’s rulings of law are correct, and determine whether the 6 court’s application of the law to the facts is arbitrary or capricious. (Garcia, at p. 857.) However, where the appeal from a resentencing order “raises a question of law, our review is de novo.” (Mathis, at p. 366; see People v. Espino (2024) 104 Cal.App.5th 188, 194 [reviewing de novo whether the word “imposed” as used in § 1172.75 applies to cases where execution of a prior prison term enhancement was stayed], affd (2026) 20 Cal.5th 57.)

B. Little Is Entitled to Recall and Resentencing Under Section 1172.75 Little contends, the People concede, and we agree Little is eligible for recall and resentencing under section 1172.75 because his current sentence (imposed in 2018) includes now-invalid section 667.5(b) enhancements. As discussed, at Little’s initial sentencing in 2015, the court imposed two prior prison term enhancements. At the 2018 resentencing, the court dismissed counts 4, 6, and 8 pursuant to our opinion in Little I, supra, B2665699, and stated Little’s “sentence remains as to the other counts as stated, and his total time is now 67 years [to life].” Further, Little was sentenced in 2015 to an aggregate term of 71 years eight months to life in prison. This sentence included 16-month terms on counts 4 and 6 and a two-year term on count 8 (for a total of four years eight months), in addition to two years for the section 667.5(b) enhancements. Thus, the 2018 reduction in Little’s sentence from 71 years eight months to life to 67 years to life reflects dismissal of the three counts, reducing his sentence by four years eight months, but leaving the two prior 7 prison term enhancements in place.3 In addition, as the Attorney General notes, nothing in the record shows that the trial court in 2018 struck the two section 667.5(b) enhancements. The trial court’s oral pronouncement of judgment controls over a conflicting abstract of judgment. (People v. Whalum (2020) 50 Cal.App.5th 1, 15 [“Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls.”]; see People v. Leon (2020) 8 Cal.5th 831, 855 [“Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error.”].) Accordingly, the trial court’s October 3, 2018 oral pronouncement of judgment controls, which reflects that the trial court imposed an aggregate sentence of 67 years to life, including two section 667.5(b) enhancements. The trial court therefore erred in denying Little’s petition for recall and resentencing under section 1172.75.4 3 As the Attorney General notes, it appears that the October 3, 2018 minute order and October 22, 2018 abstract of judgment, both of which reflected an aggregate sentence of 64 years to life (instead of the trial court’s oral pronouncement of 67 years to life), failed to include the two 1-year section 667.5(b) enhancements and incorrectly assumed the trial court imposed a one-year term on count one instead of two years. 4 Although the trial court erred in denying Little’s petition, we note that neither the trial court nor counsel at the 2024 hearing on Little’s petition had the benefit of a transcript from the 2018 resentencing hearing.

8 DISPOSITION

The March 24, 2025 order denying Little’s petition for recall and resentencing is reversed. We remand for the trial court to grant Little’s petition under section 1172.75, to recall his sentence, and to conduct a full resentencing hearing.

FEUER, J.

We concur:

SEGAL, Acting P. J STONE, J.