Filed 8/24/15 P. v. Speck CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061228

v.                                                                       (Super.Ct.No. SWF1102604)

DANIEL TAHOE SPECK,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge.

Affirmed and remanded with directions.

         John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney

General, Arlene A. Sevidal, and Amanda E. Casillas, Deputy Attorneys General, for

Plaintiff and Respondent.

         The trial court placed defendant Daniel Speck on probation and ordered him to

serve 365 days in jail after a jury convicted him of misdemeanor assault and of battery

                                                             1
with serious bodily injury. Defendant argues, the People concede, and this court agrees

that: (1) defendant’s sentence for misdemeanor assault should be reduced to a maximum

of 180 days; and (2) the minute order should be corrected to show the trial court waived

rather than suspended the presentence incarceration fee.

                                  FACTS AND PROCEDURE

       On September 9, 2011, during a party at defendant’s home, defendant punched

and hit a guest after the guest punched a hole in the wall of defendant’s home. Other

party goers attacked the guest as well. The guest suffered a broken nose and fractured

facial bones.

       On April 8, 2014, a jury convicted defendant of misdemeanor simple assault

(Pen. Code, § 240) 1 and battery with serious bodily injury (§ 243, subd. (d)).

       On May 6, 2014, the trial court suspended the imposition of sentence for the

battery conviction and placed defendant on probation for four years, with a condition of

probation that he serve 365 days in jail, with credit for 148 days. On the assault

conviction, the court sentenced defendant to 365 days in jail, to be served concurrently

with the sentence for battery. Among other fines and fees, the trial court waived the

$10,539 presentence incarceration fee under section 1203.1c based on defendant’s lack of

ability to pay.

       This appeal followed.




       1   All section references are to the Penal Code unless otherwise indicated.


                                              2
                                        DISCUSSION

       1. Defendant Should be Resentenced on the Misdemeanor Assault Conviction

       The jury convicted defendant of misdemeanor simple assault under section 240.

The trial sentenced defendant to 365 days in county jail. However, under section 241, the

maximum punishment for misdemeanor simple assault is 180 days in county jail. Thus,

the sentence is unauthorized by law and defendant can challenge it on appeal without

having objected in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354).

       The matter is remanded to the trial court for resentencing on this count.

       2. The Minute Order Should be Corrected to Show the Court Waived the

             Presentence Incarceration Fee

       The record transcript shows the trial court waived the $10,539 presentence

incarceration fee based on defendant’s lack of ability to pay. However, the minute order

for the sentencing hearing incorrectly states that the trial court suspended the fee.

       As a general rule, the record will be harmonized when it is in conflict. (People v.

Smith (1983) 33 Cal.3d 596, 599.) “‘[A] discrepancy between the judgment as orally

pronounced and as entered in the minutes is presumably the result of clerical error.’”

(People v. Williams (1980) 103 Cal.App.3d 507, 517; see also In re Daoud (1976) 16

Cal.3d 879, 882, fn. 1 [trial court could properly correct a clerical error in a minute order

nunc pro tunc to conform to the oral order of that date if there was a discrepancy between

the two].)

       Therefore, we will remand this case to the trial court to correct the minute order to




                                              3
reflect that the trial court waived the presentence incarceration fee.

                                           DISPOSITION

       Affirmed and remanded with directions to the trial court to resentence defendant

on the misdemeanor simple assault conviction and to correct the minute order for May 6,

2014 to reflect that the trial court waived the presentence incarceration fee.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 RAMIREZ
                                                                                     P. J.


We concur:

HOLLENHORST
                           J.

CODRINGTON
                           J.




                                              4
