Holmes

A jury convicted defendant Robert Scott Holmes of battery on a spouse, a misdemeanor (Pen. Code, § 243, subd. (e)(1); undesignated section references are to this code; count 3) and false imprisonment by violence or menace (§§ 236, 237), a lesser included offense of the charged offense of kidnapping (§ 207, subd. (a); count 1). The jury deadlocked on a charge of criminal threats (§ 422; count 2) which was dismissed at sentencing. In bifurcated proceedings, the trial court found three prior prison term allegations (§ 667.5, subd. (b)) to be true.

At sentencing, the trial court struck the prior prison term allegations pursuant to section 1385. For the false imprisonment by violence or menace offense, the court sentenced defendant to state prison for the midterm of two years and imposed a $400 restitution fine and a $400 parole revocation restitution fine. For the misdemeanor battery offense, the court granted probation for a term of five years subject to 90 days in jail concurrent with his prison sentence and imposed a $100 restitution fine and a $100 probation revocation restitution fine.

Defendant appeals. He contends (1) the trial court’s instructions lessened the…