Filed 10/24/14 P. v. Cato CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141543
v.
DENNIS CATO,                                                         (Lake County
                                                                     Super. Ct. No. CR930233)
         Defendant and Appellant.


         Dennis Cato was convicted on his plea of no contest to one count of assault with a
firearm (Pen. Code, § 245, subd. (a)(2)),1 and he admitted an allegation of personal use of
a firearm (§ 12022.5, subd. (a)). Several other charges, including attempted murder, were
dismissed pursuant to the plea. Cato challenges his sentence to state prison, contending
that the trial court abused its discretion in refusing to grant him probation. We affirm.
                                       I.       FACTUAL BACKGROUND2
         On August 29, 2012, two employees of a PG&E subcontractor that installs energy-
efficient utilities in low-income homes were working at Cato’s home installing a new
water heater, a water-flow improvement device, and smoke and carbon monoxide
detectors. Cato was present as they worked and “seemed like a normal person.” Late in
the afternoon, however, Cato came out of the house smelling of alcohol and said he was
going to shoot the two workmen. Fearing for their safety, the two men began to put their


         1
             Undesignated statutory references are to the Penal Code.
         2
             The background facts are taken from the probation officer’s report.


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tools and materials in their van. Cato went back into the house. He returned holding a
black handgun and began firing at them. The two fled, and one of them fell and hurt his
back. As they ran, Cato continued to shoot at them.
       Sheriffs’ deputies were called and took Cato into custody without further incident.
Cato appeared intoxicated and had a strong odor of alcohol about his person. The
deputies collected a black handgun, a silver handgun, and a rifle from the house. Two
bullet holes were found in the front left tire of the victims’ van.
                              II.     PROCEDURAL HISTORY
       Cato was charged by information with two counts each of attempted murder
(§§ 187, subd. (a), 664), assault with a firearm (§ 245, subd. (a)(2)), and criminal threats
(§ 422). He also was charged with one count of discharging a firearm in a grossly
negligent manner (§ 246.3, subd. (a)), and several firearm enhancements were alleged
(§§1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (b), (c)). At arraignment,
defense counsel declared a doubt as to Cato’s competency under section 1368. The court
suspended criminal proceedings. The appointed doctors opined that Cato was competent
to stand trial. The matter was submitted on their reports, and the court found Cato
competent. Cato then entered a plea of not guilty by reason of insanity, and an
examination pursuant to section 1027 was ordered. Donald Apostle, a psychiatrist,
opined that Cato was not legally insane at the time of the offense but had committed it
during an alcoholic blackout. Kevin Kelly, a psychologist, found no evidence of
“significant mental health disturbance,” but suggested that Cato’s behavior at the time of
the offense may have been caused by alcohol intoxication combined with memory and
behavioral impairments associated with mild dementia, stroke and diabetes, as well as
Cato’s use of a variety of antidepressants, sleep aids and painkillers.
       On April 12, 2013, defense counsel again declared a doubt as to Cato’s
competency. Apostle and Kelly were appointed to evaluate Cato, and both of them found
Cato not competent to stand trial due to dementia. The court ordered Cato placed at Napa
State Hospital pursuant to section 1370. On December 31, 2013, the medical director of
Napa State Hospital certified that Cato had regained his mental competence.


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       Following his return to court, Cato entered a plea of no contest pursuant to a
negotiated disposition to one count of assault with a firearm (§ 245, subd. (a)(2)), and he
admitted personal use of a firearm (§ 12022.5, subd. (a)). Under the terms of the plea
agreement, the sentence to be imposed was in the court’s discretion, with the
understanding that Cato would receive no more than six years in state prison. The
remaining charges were dismissed with a Harvey waiver.3
       A sentencing hearing was held on April 7, 2014. The probation report
recommended denial of probation and imposition of an aggregate prison term of five
years. Victim impact evidence was presented through the testimony of one victim and a
letter from the other. The defense presented the testimony of Cato’s sister, two long-time
friends, and a caregiver—each testifying as to Cato’s nonviolent character, medical
history, and physical disabilities. Cato also testified. Cato expressed remorse for the
shooting incident, but said that he had no memory of anything on the day of the incident,
opining that he had suffered an anxiety attack.4
       The prosecution argued that Cato remained a substantial danger to others in light
of his continued consumption of alcohol even following a stroke, and asked the court to
impose a six-year prison sentence. The defense argued that this was an unusual case
justifying a grant of probation due to Cato’s age,5 minimal prior record, the fact that he
was on medication at the time of the offense, and that the offense was committed due to a
mental condition. “He’s an elderly man in a wheelchair [who] did something that he
should not have done because of a mental condition.”
       The court denied probation. The court first observed that Cato, as a consequence
of his personal use of a firearm, was not eligible for probation in the absence of unusual



       3
           People v. Harvey (1979) 25 Cal.3d 754.
       4
         In one interview with an examining psychiatrist, Cato denied any memory of the
event, but said he was “just firing warning shots” because he thought the victims were
trying to “set him up” for a home invasion.
       5
           Cato was 65 years old at the time of sentencing.


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circumstances. (§ 1203, subd. (e)(2); Cal. Rules of Court, rule 4.413.)6 While finding
factors that made the case unusual, “[i]n terms of a grant of probation I don’t find this to
be that unusual of a case. He attacked two people with a firearm. Obviously an
extremely serious behavior. Obviously he was an active participant in the offense. He
was armed with a weapon. Probation will be denied.” The court noted that Cato’s prior
criminal history was relatively insignificant, that his prior performance on probation was
satisfactory, and that Cato was possibly suffering from a mental condition which
significantly reduced his culpability for the crime. The court indicated it would follow
the probation department’s recommendation and imposed the low term of two years in
state prison for assault with a firearm plus the low term of three years for the firearm use
enhancement, for an aggregate prison term of five years. Cato was awarded a total of
653 days credit for time served, including 587 actual days, plus 66 days conduct credit
pursuant to section 2933.1.
                                      III.   DISCUSSION
       Cato contends the trial court misunderstood the scope of its sentencing discretion
and abused that discretion in denying probation. We disagree.
       As a consequence of having used a firearm in commission of the crime, Cato was
presumptively ineligible for probation under section 1203, subdivision (e)(2), which
prohibits a grant of probation in cases where a firearm is used “[e]xcept in unusual cases
where the interests of justice would best be served if the person is granted probation.”
“The standard for reviewing a trial court’s finding that a case may or may not be unusual
is abuse of discretion. [Citations.] The standard is the same for review of an order
granting probation. ‘Probation is an act of clemency which rests within the discretion of
the trial court, whose order granting or denying probation will not be disturbed on appeal
unless there has been an abuse of discretion.’ [Citation.]” (People v. Superior Court
(Du) (1992) 5 Cal.App.4th 822, 831.)



       6
           All rule references are to the California Rules of Court.


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       As Cato acknowledges in his opening brief, the standard for abuse of discretion in
denying probation is a difficult one to meet. “Our function is to determine whether the
respondent court’s order is arbitrary or capricious, or ‘ “exceeds the bounds of reason, all
of the circumstances being considered.” ’ [Citation.]” (People v. Superior Court (Du),
supra, 5 Cal.App.4th at p. 831.) “In reviewing for abuse of discretion, we are guided by
two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial
judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376–377.)
       Cato first suggests that the court abused its discretion by applying an incorrect
standard in assessing whether unusual circumstances warranted a grant of probation. He
contends that the court, having found unusual circumstances to be present, was then
required to proceed to consideration of rule 4.414 factors in determining the propriety of
probation.7 He argues that the court erred in deciding instead that the circumstances were
not unusual enough to warrant a probation grant.


       7
         “Criteria affecting the decision to grant or deny probation include facts relating
to the crime and facts relating to the defendant. [¶] (a) Facts relating to the crime [¶]
Facts relating to the crime include: [¶] (1) The nature, seriousness, and circumstances of
the crime as compared to other instances of the same crime; [¶] (2) Whether the
defendant was armed with or used a weapon; [¶] (3) The vulnerability of the victim; [¶]
(4) Whether the defendant inflicted physical or emotional injury; [¶] (5) The degree of
monetary loss to the victim; [¶] (6) Whether the defendant was an active or a passive
participant; [¶] (7) Whether the crime was committed because of an unusual
circumstance, such as great provocation, which is unlikely to recur; [¶] (8) Whether the
manner in which the crime was carried out demonstrated criminal sophistication or

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       We do not read the record as Cato would have us do. The court clearly understood
its discretion to grant probation and the finding it would be required to make in order to
do so. Cato fails to show otherwise. The court indicated only that factors were present
which might allow it to find Cato to be probation eligible. (See rule 4.413.)8 The


professionalism on the part of the defendant; and [¶] (9) Whether the defendant took
advantage of a position of trust or confidence to commit the crime. [¶] (b) Facts relating
to the defendant [¶] Facts relating to the defendant include: [¶] (1) Prior record of
criminal conduct, whether as an adult or a juvenile, including the recency and frequency
of prior crimes; and whether the prior record indicates a pattern of regular or increasingly
serious criminal conduct; [¶] (2) Prior performance on probation or parole and present
probation or parole status; [¶] (3) Willingness to comply with the terms of probation; [¶]
(4) Ability to comply with reasonable terms of probation as indicated by the defendant’s
age, education, health, mental faculties, history of alcohol or other substance abuse,
family background and ties, employment and military service history, and other relevant
factors; [¶] (5) The likely effect of imprisonment on the defendant and his or her
dependents; [¶] (6) The adverse collateral consequences on the defendant's life resulting
from the felony conviction; [¶] (7) Whether the defendant is remorseful; and [¶] (8) The
likelihood that if not imprisoned the defendant will be a danger to others.” (Rule 4.414.)
       8
         “(a) Consideration of eligibility [¶] The court must determine whether the
defendant is eligible for probation. [¶] (b) Probation in unusual cases [¶] If the
defendant comes under a statutory provision prohibiting probation “except in unusual
cases where the interests of justice would best be served,” or a substantially equivalent
provision, the court should apply the criteria in (c) to evaluate whether the statutory
limitation on probation is overcome; and if it is, the court should then apply the criteria in
rule 4.414 to decide whether to grant probation. [¶] (c) Facts showing unusual case [¶]
The following facts may indicate the existence of an unusual case in which probation
may be granted if otherwise appropriate: [¶] (1) Facts relating to basis for limitation on
probation [¶] A fact or circumstance indicating that the basis for the statutory limitation
on probation, although technically present, is not fully applicable to the case, including:
[¶] (A) The fact or circumstance giving rise to the limitation on probation is, in this case,
substantially less serious than the circumstances typically present in other cases involving
the same probation limitation, and the defendant has no recent record of committing
similar crimes or crimes of violence; and [¶] (B) The current offense is less serious than a
prior felony conviction that is the cause of the limitation on probation, and the defendant
has been free from incarceration and serious violation of the law for a substantial time
before the current offense. [¶] (2) Facts limiting defendant’s culpability [¶] A fact or
circumstance not amounting to a defense, but reducing the defendant’s culpability for the
offense, including: [¶] (A) The defendant participated in the crime under circumstances
of great provocation, coercion, or duress not amounting to a defense, and the defendant

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probation report, which the court indicated it had read and considered, was admitted into
evidence and directly addressed the applicability of factors under both rules 4.413 and
4.414. In stating that the court did not “find this to be that unusual of a case,” the court
simply expressed its view that it was not persuaded that the favorable factors outweighed
the presumption against grant of probation.
       It is also clear from the record that the court was not prepared to grant probation
even if it concluded that Cato was eligible, considering all the circumstances of the
offense. Cato complains that the underlying offense here “was carried out by a
demented, alcoholic old man in the throes of a blackout, who shot at two men he believed
to be intruders, failed to hit them, and caused only emotional injury and a back problem
that occurred when one of them tripped and fell while fleeing.” Cato contends that the
court “seriously abused its discretion” by failing to give adequate consideration to the
rule 4.414 factors including the limited extent of his prior record; his ability to comply
with probation; the likely effect of imprisonment on him; his remorse; and the likelihood
that he would not be a danger to others if not imprisoned. He insists that the trial court’s
discretion “should have been guided by its extensive knowledge of [his] medical
condition and his struggles with both alcoholism and dementia.”
       Cato shows only that “reasonable people might disagree” as to the appropriate
sentence in this matter; he does not show that the sentence imposed by the court “is so
irrational or arbitrary that no reasonable person could agree with it.” (People v.
Carmony, supra, 33 Cal.4th at p. 377.) His claim therefore fails.
                                    IV.    DISPOSITION
       The judgment is affirmed.




has no recent record of committing crimes of violence; [¶] (B) The crime was committed
because of a mental condition not amounting to a defense, and there is a high likelihood
that the defendant would respond favorably to mental health care and treatment that
would be required as a condition of probation; and [¶] (C) The defendant is youthful or
aged, and has no significant record of prior criminal offenses.” (Rule 4.413.)


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                                _________________________
                                BRUINIERS, J.


WE CONCUR:


_________________________
SIMONS, Acting P. J.


_________________________
NEEDHAM, J.




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