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The People v. Jonathan Scott Elderton

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)


June 27, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JONATHAN SCOTT ELDERTON, DEFENDANT AND APPELLANT.

(Super. Ct. No. CM032618)

The opinion of the court was delivered by: Blease , J.

P. v. Elderton

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Jonathan Scott Elderton pleaded guilty to corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) and child endangerment (Pen. Code, § 273a, subd. (b)) in exchange for a promise that he be initially granted probation. Defendant was placed on probation for four years under various terms and conditions.

Factual Basis for Plea

Defendant was cohabiting with the female adult victim and their four-month-old child. Defendant was upset and pushed the child, causing the child to fall and hit its head on the side of the crib. Defendant punched the adult female, causing a large bruise on her cheek bone.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests that this court review the record and determine whether it reflects any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief. More than 30 days have elapsed, and we have received no communication from defendant.

We have reviewed the record in its entirety and find only the following error. As a condition of probation, defendant was ordered to serve 180 days in jail, and was given credit for 51 days actually served. The probation officer's report states that defendant was also entitled to 50 days for conduct credit, however, nothing in the record shows that defendant received the additional conduct credit. (See Pen. Code, § 2900.5, subd. (a) [defendant entitled to conduct credits pursuant to Pen. Code, § 4019 against time imposed as a condition of probation].) Although the probation department calculated defendant's conduct credit pursuant to amended Penal Code section 4019, effective January 25, 2010, which provided for eligible defendants to receive two days of conduct credit for every two days served, defendant is entitled, under equal protection principles, to one additional day of conduct credit by the amendment to Penal Code section 2933, effective September 28, 2010.

DISPOSITION

The matter is remanded to the Butte County Superior Court with directions to amend its record to reflect that in addition to the 51 days credit for actual service defendant received against the 180-day jail term imposed, he is to receive an additional 51 days of conduct credit against that term. In all other respects, the judgment is affirmed.

We concur: RAYE , P. J. MAURO , J.

20110627

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