Filed 9/8/26 P. v. Little CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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
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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.”].)
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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
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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
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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.
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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.
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