People v. Montana CA6

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural background On January 6, 2020, the Santa Clara County District Attorney filed a first amended information charging Montana with the following felonies: sodomy by use of an intoxicating, anesthetic, or controlled substance (Pen. Code, § 286, subd. (i); count 1);2 sodomy by force (§ 286, subd. (c)(2)(A); count 2); oral copulation by use of an intoxicating, anesthetic, or controlled substance (§ 288a, subd. (i); count 3); oral copulation by force (§ 288a, subd. (c)(2); count 4); rape by use of an intoxicating, anesthetic, or controlled substance (§ 261, subd. (a)(3); count 5); rape of a victim unconscious of the nature of the act (§ 261, subd. (a)(4); count 6); and rape by force (§ 261, subd. (a)(2); count 7). A jury found Montana not guilty on count 6 (rape of a victim unconscious of the nature of act) but convicted him on all of the remaining counts. The trial court sentenced Montana to the lesser term of three years on count 2 (forcible sodomy), with concurrent separate three year terms on count 4 (forcible oral copulation) and count 7 (forcible rape). The court also imposed, but stayed pursuant to section 654, separate three…