Nature of the Case
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Facts
D lived with his wife, Silvia, and their two sons, Esteban and Favio. Silvia arrived home from work and saw D and Esteban outside their apartment. She approached D to hug him and smelled alcohol on his breath. They spoke for five minutes, during which she asked why he had been drinking so early in the week. D accused Silvia of having an affair. She did not respond but went into their apartment. D had made similar false accusations of infidelity, usually when he was under the influence of drugs or alcohol. Silvia locked the doors to avoid an argument. Ten minutes later, he was able to enter the apartment. D produced a knife he carried and told her that no one was going to save her this time. D knocked Silvia, knocked her to the floor, and stabbed her twice in the stomach area. He tried to stab her two more times, but she put up her hands to defend herself and received cuts on the hands in the process. Silvia was taken to the hospital where she had emergency surgery and remained hospitalized for four days. She suffered permanent scarring. Officers found D hiding, appearing to be intoxicated. D did not regret what he did. At trial, D testified that he had consumed both cocaine and alcohol. D claimed he saw someone exit his apartment and jump over a fence. D suspected Silvia was having an affair and saw the bed disheveled and confronted Silvia about his suspicions. Silvia grabbed a knife and said, 'Yeah, faggot. What of it?' D drew his knife and held it out so Silvia would 'be afraid with her knife.' There was a struggle and he was cut. After the struggle, his head 'got all foggy' and everything went dark. From that point, he had no recollection of events or how he got to the location where he was arrested. At trial, he didn’t remember if he said he wanted to kill Silvia but he did make that statement during questioning by the police. Prior incidents of domestic violence were entered into the record. D was convicted. D's criminal record consisted of a 1992 conviction of misdemeanor driving under the influence and a drug possession charge for which he successfully completed deferred entry of judgment in 2007. D argued that his insignificant prior record, his intoxication from drugs and/or alcohol at the time of the incident, and his prior successful performance on probation were all factors in mitigation that should have subjected him to the low term. The court found no mitigating circumstances with respect to the crime, other than a minimal criminal record. The trial court sentenced D to the upper term of nine years on the attempted murder count plus one year for the deadly weapon enhancement and the upper term of five years for the great bodily injury enhancement. It sentenced him to the upper term of four years on count 2, plus six years for the same enhancements on count 1, staying the sentence on count 2 pursuant to section 654. D appealed.
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