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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              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.


                                        _________________________
       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

1
       All statutory references are to the Penal Code unless otherwise indicated.
2
        The sentence consisted of 11 years on the base count, which was composed of the
midterm of three years doubled to six years for the prior strike plus five years for the
prior serious felony conviction. The sentence on count 1 consisted of one-third the
midterm of eight months doubled to 16 months for the prior strike, to run consecutively
to the sentence imposed on count 5. As to count 4, the trial court imposed a term of six
months in county jail to run concurrently with the other sentences.

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time appellant “would go out in front of the door and say we weren’t going nowhere.”
Stephanie called the police several times asking for help due to appellant’s strange
behavior. She did not report any abuse or threats because she was scared. At some point
during this time period, the police took appellant to a psychiatric hospital, but Stephanie
was called and told to pick him up because he was fine.
         Some time in the early morning hours on or about November 9 or 10, 2011, while
Stephanie was asleep in the bed she shared with appellant, appellant “socked” her in the
face, leaving her dazed. The strike was “hard” and left Stephanie’s face swollen with a
welt. Stephanie started crying and the couple’s youngest daughter, who was also
sleeping in the bed, started screaming, “No, no.” Appellant locked the deadbolt on the
bedroom door, and said that he was going to kill Stephanie. She believed him and was
scared. Appellant laughed. The children started banging on the door and appellant
eventually unlocked the door. After the children rushed in, Stephanie started to guide
them out of the room when appellant grabbed her by the hair and pulled her down. She
managed to escape his grasp. As Stephanie headed out of the room, appellant grabbed
her arm, causing visible bruising. She and the children slept downstairs the rest of the
night.
         After the children went to school, appellant continued his threats to kill Stephanie
while holding a knife. She called the police several times that day, but did not report the
threats or physical abuse because she was “too scared” appellant would kill her or the
children, or have someone else kill them.
         On or about November 10, 2011, appellant slapped his granddaughter, April R., in
the face, grabbed her neck and pushed her down the stairs. The slap left a red mark on
her face. April R. began crying. When Stephanie tried to intervene, appellant pushed
Stephanie to the ground, pulled her hair, kicked her, and gave her a black eye.
         On November 12, 2011, Stephanie called the police because she wanted appellant
to leave the house. The responding officers were eventually able to talk appellant into
leaving and helped him gather some of his belongings. A few minutes after the police
left, appellant returned to the house. From outside the locked house, appellant threatened

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to kill Stephanie again. Then he picked up a wooden chair and threw it through a
window, shattering the glass. Small bits of glass struck Stephanie and her son Robert S.,
but no one was injured. Appellant left immediately.
       The police returned. Stephanie appeared more frightened to the officers than she
had earlier and Robert S. was “teary” and “shaking.” Stephanie did not show the officers
her injuries from being previously struck by appellant because they were no longer
visible. While the police were still present, appellant called Stephanie on her cell phone
and stated, “I am going to kill you bitch. I am going to chop you up, and I am going to
put you in a bag, and I am going to give you to your kids.” Appellant was arrested later
that night at his mother’s house in Whittier.
Defense Case
       Appellant testified that during the relevant time period he was going through
financial and mental problems, hearing voices, hallucinating, and using PCP. He
remembered talking to police officers and being asked to leave his house. He drove his
truck around the block and then returned to the house, where he threw a chair through the
window out of frustration. He denied threatening to kill Stephanie, punching her while
she slept, or ever being violent. Appellant admitted that he suffered a robbery conviction
in 1993, and a conviction for battery on a spouse/cohabitant/child’s parent
in 1997.
       Forensic psychologist Dr. Haig Kojian interviewed appellant prior to trial.
Appellant reported having struggled with depression for “some time,” but denied having
a history of mental health or emotional problems or visual or auditory hallucinations.
Appellant also denied having any history of inpatient or outpatient mental health
treatment prior to November 2011. A review of appellant’s medical records, however,
showed that appellant’s representations were inconsistent with his actual medical history,
and “clearly showed that he did have incidences where he was admitted to the psychiatric
hospital” in the past.




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       Appellant was diagnosed with major depression in January 2010, and was
prescribed the antidepressant, Paxil. Appellant told Dr. Kojian that he stopped taking
Paxil in November 2011, and used PCP instead. Appellant reported to Dr. Kojian that
during the time of the incidents, he was having hallucinations. Dr. Kojian testified that
PCP use can “mimic a lot of the mental symptoms of the psychosis schizophrenia, but it
also [can cause] mood instability, primarily depression.” Some of the symptoms include
delusions, visual and auditory hallucinations, irrationality and mood instability that could
include mood swings where the user “could be calm then agitated or excited.”
       A review of appellant’s medical records in November 2011 showed that appellant
was released from the hospital after two days. According to Dr. Kojian, appellant would
not have been released if he had been a danger to himself or others.
                                      DISCUSSION
I. No Instructional Error
       Appellant contends that the trial court committed reversible error by failing to
instruct the jury on misdemeanor battery (§ 243, subd. (e)(1)) as a lesser included offense
of corporal injury to a spouse or cohabitant (§ 273.5, subd. (a)) (count 5) because “there
was so little evidence of a corporal injury in this case that the court had a sua sponte duty
to instruct the jury with the lesser included offense.” We disagree.
       A. Applicable Law
       Section 273.5 provides that any person who willfully inflicts upon a spouse
“corporal injury resulting in a traumatic condition, is guilty of a felony.” (§ 273.5, subd.
(a).) Traumatic condition is defined as “a condition of the body, such as a wound or
external or internal injury whether of a minor or serious nature, caused by a physical
force.” (§ 273.5, subd. (c).) A bruise is a traumatic condition. (People v. Beasley (2003)
105 Cal.App.4th 1078, 1085.)
       “A battery is any willful and unlawful use of force or violence upon the person of
another.” (§ 242.) Appellant is correct that battery is a lesser included offense of
inflicting corporal injury on a spouse. (§ 243, subd. (e)(1); People v. Hamlin (2009) 170
Cal.App.4th 1412, 1457 (Hamlin).)

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       “The trial court must instruct sua sponte on ‘lesser included offenses if the
evidence ‘raises a question as to whether all of the elements of the charged offense are
present and there is evidence that would justify a conviction of such a lesser offense.’”
(Hamlin, supra, 170 Cal.App.4th at p. 1456, quoting People v. Lopez (1998) 19 Cal.4th
282, 287–288.) Plainly stated, “[t]he trial court must instruct on lesser offenses
necessarily included in the charged offense if there is substantial evidence the defendant
is guilty only of the lesser.” (People v. Kraft (2000) 23 Cal.4th 978, 1063, italics added;
People v. DePriest (2007) 42 Cal.4th 1, 50 [instructions on lesser included offense “are
required only where there is ‘substantial evidence’ from which a rational jury could
conclude that the defendant committed the lesser offense, and that he is not guilty of the
greater offense”]; People v. Memro (1995) 11 Cal.4th 786, 871.) Thus, “if there is no
proof, other than an unexplainable rejection of the prosecution’s evidence, that the
offense was less than that charged, such instructions shall not be given. [Citations.]”
(People v. Kraft, supra, 23 Cal.4th at pp. 1063–1064.)
       We review de novo whether the trial court erred in failing to instruct on a lesser
included offense. (People v. Cook (2006) 39 Cal.4th 566, 596.)
       B. Analysis
       The trial court had no sua sponte duty to instruct the jury on misdemeanor battery
because there was no question that all of the elements of the charged offense were
present. The amended information charged appellant with committing the crime of
inflicting corporal injury on his spouse “[o]n or between October 1, 2011, through
November 12, 2011.” Thus, as the People note, in order to convict appellant of this
offense, the jury simply had to find that at some point during the relevant time frame
appellant willfully inflicted bodily injury upon Stephanie that resulted in a traumatic
condition.
       For each incident in which appellant battered Stephanie, the jury heard testimony
that physical injury resulted. For example, Stephanie testified that on or about
November 9 or 10, 2011, appellant punched her “hard” in the face while she was
sleeping, and the impact left a welt. After Stephanie got up from the bed and tried to

                                             6
leave the room with the children, appellant grabbed her arm, causing visible bruising. On
another occasion when Stephanie tried to intervene while appellant slapped and grabbed
their granddaughter, appellant pushed Stephanie to the ground, pulled her hair, kicked
her, and gave her a black eye. For each incident, there was uncontroverted evidence of a
traumatic condition. Accordingly, the evidence supported a conviction of spousal abuse,
and not simply spousal battery.
       Appellant attempts to avoid this outcome by pointing out that Stephanie did not
seek medical treatment, show her injuries to the police, or report appellant’s abusive
behavior. But section 273.5 does not require a victim to take such actions. Rather, it
requires only that the defendant willfully used physical force upon a spouse that resulted
in a traumatic condition, i.e., a wound “whether of a minor or serious nature.” (§ 273.5,
subd. (c).) The evidence established these elements.
II. Domestic Violence Fee
       Appellant contends, and the People agree, that the trial court erroneously imposed
a $400 domestic violence fee under section 1203.097. This section provides that, “If a
person is granted probation . . . the terms of the probation shall include all of the
following: [¶] . . . [¶] (5) A minimum payment by the defendant of four hundred dollars
($400) . . . .” (§ 1203.097, subd. (a).) Thus, by its terms, section 1203.097 only applies
when probation is granted. Because appellant was denied probation and sentenced to a
prison term, the domestic violence fee must be stricken.




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                                      DISPOSITION
       The domestic violence fee of $400 is stricken, and the trial court is directed to
forward an amended abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                  __________________________, J.
                                                        ASHMANN-GERST


We concur:



_____________________________, P. J.
           BOREN



______________________________, J.*
           FERNS




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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