People v. Cato CA1/5

Filed 10/24/14 P. v. Cato CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.