People v. Jauregui CA2/8 ( 2021 )

Filed 1/20/21 P. v. Jauregui CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B301440
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA119225)
v.
ROBERT JAUREGUI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Juan C. Dominguez, Judge. Modified and
remanded.
David Zarmi, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
Robert Jauregui was sentenced to prison for inflicting
corporal injury on his child’s mother within seven years of being
convicted of a similar offense. On appeal, Jauregui contends
there is insufficient evidence showing his prior conviction
occurred within seven years of his present offense. The Attorney
General concedes the point. We modify the judgment and
remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On September 1, 2018, Erica L.1 walked outside her house
and saw Jauregui, who is the father of her child. Erica was
arguing with someone on the phone, and she looked at Jauregui.
As she started walking back towards the house, Jauregui said,
“So what’s up now, bitch? Talk some shit.” He pulled Erica’s
hair and struck her in the face with a closed fist several times.
Erica was bleeding from her head, and she was transported to a
hospital. Medical records indicated she had suffered a fractured
nose and orbital bone, as well as a hematoma on the top of her
head.
Jauregui was charged with a single count of violating Penal
Code section 273.5, subdivision (f)(1)2 (hereafter section
273.5(f)(1)), which prohibits inflicting corporal injury on the
parent of an offender’s child within seven years of a previous
conviction for violating section 273.5, subdivision (a) (hereafter
section 273.5(a)). It was further alleged that Jauregui inflicted
1 To protect her personal privacy interests, we refer to the
victim by her first name and last initial. (Cal. Rules of Court,
rule 8.90(b)(4).)
2 All further undesignated statutory references are to the
Penal Code.
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great bodily injury (GBI) upon the victim under circumstances
involving domestic violence (§ 12022.7, subd. (e)).
A jury found Jauregui guilty of injuring his child’s parent,
and it found true the GBI allegation. Jauregui subsequently
admitted suffering a 2009 conviction for violating section
273.5(a).
The trial court sentenced Jauregui to an aggregate term of
eight years in prison, consisting of the midterm of four years
under section 273.5(f)(1), plus four years for the GBI
enhancement. Jauregui timely appealed.
DISCUSSION
Jauregui contends, and the Attorney General concedes, the
trial court erred in sentencing him under section 273.5(f)(1)
because there is insufficient evidence showing he suffered a prior
conviction under section 273.5(a) within seven years of the
present offense. We agree.
Section 273.5(a) provides that any person who willfully
inflicts corporal injury resulting in a traumatic condition upon
the parent of the offender’s child “shall be punished by
imprisonment in the state prison for two, three, or four years, or
in a county jail for not more than one year, or by a fine of up to
six thousand dollars ($6,000), or by both that fine and
imprisonment.” Section 273.5(f)(1) provides enhanced penalties
for persons convicted of violating section 273.5(a) “for acts
occurring within seven years of a previous conviction under
[section 273.5(a)].” Under those circumstances, the punishment
is “imprisonment in a county jail for not more than one year, or
by imprisonment in the state prison for two, four, or five years, or
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by both imprisonment and a fine of up to ten thousand dollars
($10,000).” (§ 273.5, subd. (f)(1).)3
Here, the trial court sentenced Jauregui under section
273.5(f)(1). It is undisputed, however, that his only prior section
273.5(a) conviction occurred in 2009, which is more than seven
years before the acts giving rise to his current offense.
Accordingly, there is not sufficient evidence showing Jauregui
violated section 273.5(f)(1), and he was not subject to the
enhanced penalties found in that subdivision.
Although there is insufficient evidence to support a
conviction and sentencing under section 273.5(f)(1), Jauregui
concedes that the jury found he violated section 273.5(a).
The parties agree, as do we, that the proper disposition is to
modify the judgment to reflect that Jauregui was convicted of
violating section 273.5(a), rather than section 273.5(f)(1), and
then remand the case for resentencing. (See § 1260 [an appellate
court may “modify a judgment . . . or reduce the degree of the
offense . . . [and] remand the cause to the trial court for such
further proceedings as may be just under the circumstances”].)
3 The parties conceptualize the relationship between section
273.5(a) and section 273.5(f)(1) differently. Jauregui considers
section 273.5(f)(1) to be an alternative sentencing scheme for
violations of section 273.5(a). (See People v. Cross (2015) 61
Cal.4th 164, 178.) The Attorney General, in contrast, considers
section 273.5(a) to be a lesser included offense of section
273.5(f)(1). To the extent there are distinctions between these
conceptions, they are irrelevant for our purposes.
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DISPOSITION
The judgment is modified to reflect that Jauregui was
convicted of violating section 273.5(a). The matter is remanded
for resentencing consistent with this opinion.
BIGELOW, P. J.
We Concur:
GRIMES, J.
WILEY, J.
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