People v. Montoya CA2/5

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The underlying crime(s)2 In May 1995, defendant’s girlfriend locked him out of the house they shared with the girlfriend’s adult daughter, the daughter’s two children, and the daughter’s boyfriend. Defendant returned in the middle of the night, drunk, and removed a window to regain entry. Defendant came up behind his girlfriend’s daughter in the kitchen, grabbed her and threw her to the floor, and swung at her face with an axe; the blow knocked out four of her teeth, sliced her tongue, cut her face (leaving permanent scars), and knocked her unconscious. When his girlfriend ran to the kitchen after hearing the ruckus, defendant struck her on the back of the head with a wooden closet pole, knocking her out.

All further statutory references are to the Penal Code unless otherwise indicated.

These facts are drawn from the preliminary hearing transcript, which was the only record available to the trial court at the time of resentencing.

2 B. Charges, convictions, sentencing and appeal The People charged defendant with (1) the attempted premeditated murder of his girlfriend (§§ 664, 187), (2) the attempted…