Filed 1/20/21 P. v. Jauregui CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT JAUREGUI,

Defendant and Appellant.

 B301440

 (Los Angeles County

 Super. Ct. No. KA119225)

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.

__________________________
2

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.
3

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 
4

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. 
5

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.