People v. Sharp CA2/6

Filed 5/21/14 P. v. Sharp CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B245525 (Super. Ct. No. 2008014330) Plaintiff and Respondent, (Ventura County)

v.

CALVIN LEONARD SHARP,

Defendant and Appellant.

Calvin Leonard Sharp appeals the judgment entered after he pled guilty to first degree murder (Pen. Code,1 §§ 187, subd. (a), 189), two counts each of attempted willful, deliberate, premeditated murder (§§ 187, subd. (a), 664) and aggravated mayhem (§ 205), and cruelty to an animal (§ 597). Appellant admitted allegations that (1) the murder was committed while he was engaged in the commission of burglary and mayhem (§ 190.2, subds. (a)(17)(G), (a)(17)(J)); (2) he used a deadly weapon in committing the murder, attempted murder, and aggravated mayhem counts; and (3) the attempted murder and aggravated mayhem victims suffered great bodily injury (§ 12022.7). After he

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

waived his right to a jury on the sanity phase of his trial, the trial court found appellant was legally sane when the crimes were committed.2 Appellant was sentenced to a total term of life without the possibility of parole plus two consecutive life terms and 10 years, consisting of life without the possibility of parole on the murder count, two consecutive terms of life on the attempted murder counts plus consecutive terms of two years on each of four attendant enhancement allegations, and a consecutive two-year term on the animal cruelty count. Sentences on the remaining counts were stayed under section 654. Appellant was also ordered to pay a $10,000 restitution fine (§ 1202.4, subd. (b)) and $72,321 in victim restitution (§ 1202.4, subd. (f)), and was awarded 1,942 presentence custody credits. Although it was not orally pronounced at sentencing, the minute order and abstract of judgment reflect a stayed $10,000 parole revocation fine (§ 1202.45). Appellant contends that the minute order of the sentencing hearing and the abstract of judgment must be corrected to reflect that he was sentenced to life with the possibility of parole on the attempted murder and aggravated mayhem counts, rather than life without the possibility of parole.3 The People concede the error. "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Moreover, an unauthorized sentence is subject to correction at any time. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) Here, the reporter's transcript of the sentencing hearing reflects that the court imposed the statutorily-prescribed sentences of life with the possibility of parole on the