Filed 4/5/17 P. v. Nelson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

TRAVIS KEITH NELSON,

Defendant and Appellant.
C081924

(Super. Ct. No. STKCRFDV20150015927)




This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We briefly recount the facts and procedural history in accordance with People v. Kelly (2006) 40 Cal.4th 106, 110.
On November 24, 2015, defendant Travis Keith Nelson sprayed his live-in girlfriend V.V. with a hose while she was sleeping in their bed. V.V. awoke, soaked from head to toe, and ran into the bathroom.
Inside the bathroom, V.V. attempted to block defendant’s access but he forced his way in and tried to wrestle a cell phone out of V.V.’s hand while threatening to kill her. Defendant threw V.V. around the bathroom. He kicked her legs, hip, and shoulder and slammed her head into the tile floor. Defendant then took the cell phone away from V.V. and left the bathroom. V.V. stayed in the bathroom and used a different cell phone to call the police. V.V. then went to the kitchen and waited for the police to arrive.
In the kitchen, V.V. opened a window to facilitate contact with the police when they arrived; defendant came into the kitchen and tried to close the window. Defendant began yelling insults at V.V. then grabbed her by the throat and started to choke her. He told V.V. he was going to kill her and have her children kidnapped and raped. V.V. passed out. When she regained consciousness, she was on her knees and defendant had his hands around her neck, holding her up.
When the police arrived, V.V. opened the door and defendant ran to the back of the house. Deputy Matthew Miley, the first officer to arrive, saw a large lump on the left side of V.V.’s forehead; he also saw a slight redness on her neck. Deputy Miley looked for defendant in and around the house but could not find him.
Despite the attack, V.V. remained in the home and agreed to attend Thanksgiving dinner with defendant and his family. She moved out of the house three or four days later.
The People charged defendant with felony domestic battery, felony criminal threats, and felony false imprisonment. As to each count, the People further alleged defendant inflicted great bodily injury on V.V. Defendant pleaded not guilty. Following a preliminary hearing, defendant was held to answer to the charges listed in the complaint, except the complaint and information wrongly identified the false imprisonment charge as a misdemeanor, which the trial court later corrected.
Prior to trial, the court denied defendant’s motion to reduce his prior felony convictions to misdemeanors under Proposition 47. The court also granted the People’s motion to play the 911 audiotape for the jury.
At trial, the People presented testimony from V.V. and their lead investigator. Defendant did not testify but called his father Eric Nelson as his only witness. Eric Nelson testified that he was in the home with defendant and V.V. on the day of the assault and that it had been his idea to turn the hose on V.V. because she appeared to be unconscious. He further testified that, after turning the hose on V.V., he and defendant left the house for the remainder of the day. According to Nelson, there was no physical altercation. Nelson also testified that V.V. did not seem afraid of defendant at Thanksgiving dinner.
The matter was submitted to the jury. During their deliberations, the jury sent out a note: “[I]f there is a hung verdict on one of the counts can we submit a verdict on the lesser charge?” The trial court responded: “The court cannot accept a verdict on a lesser charge until all of you agree he is not guilty of the greater charge. Please refer to CALCRIM instruction 3517.”
Shortly thereafter, the jury found defendant guilty of felony domestic battery. The jury acquitted defendant of felony false imprisonment but found him guilty of the lesser included charge of misdemeanor false imprisonment. The trial court declared a mistrial on the criminal threats charge and later dismissed the charge on the People’s motion.
The trial court subsequently sentenced defendant to an aggregate term of three years in state prison. The court awarded defendant 252 days of custody and conduct credit, and ordered him to pay various fines and fees.
Defendant appeals.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION
The judgment is affirmed.



RAYE , P. J.



We concur:



HULL , J.



HOCH , J.