People v. Tirado CA2/2

Filed 4/1/14 P. v. Tirado CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B245769

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA096084) v.

MARK ANTHONY TIRADO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed as modified.

Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.

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In an amended information, appellant Mark Anthony Tirado was charged with two counts of making criminal threats (Pen. Code, § 422)1 (counts 1 & 2); one count of cruelty to a child (§ 273a, subd. (b)) (count 4); one count of corporal injury to a spouse (§ 273.5, subd. (a)) (count 5); and three counts of assault with a deadly weapon (§ 245, subd. (a)(1)) (counts 6, 7, & 8). It was further alleged as to all counts that appellant suffered one prior “strike” conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and one serious felony conviction (§ 667, subd. (a)(1)). The jury found appellant guilty of counts 1, 4 and 5, and acquitted him of all other counts. The trial court found that appellant had suffered the prior convictions. Using count 5 as the base count, the trial court sentenced appellant to a total state prison term of 12 years four months.2 Appellant was ordered to pay a $400 domestic violence fee pursuant to section 1203.097, subd. (a)(5). Appellant contends that the trial court committed reversible error by failing to instruct the jury sua sponte on the lesser included offense of misdemeanor battery. We disagree. We strike the domestic violence fee and otherwise affirm the judgment. FACTS Prosecution Case This case involves the week between November 5 and 12, 2011. During this time period, appellant lived with his wife, Stephanie Bernadette Tirado (Stephanie), their four children, her son Robert S., and five grandchildren in El Monte, California. During these seven days, appellant’s behavior was abusive and violent towards Stephanie and the children. He was “acting strangely” and Stephanie believed he might be under the influence of drugs. Several times she tried to leave the house with the children, but each