P. v. McCarty CA1/5

Filed 10/6/26 P. v. McCarty 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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, A173362

v. (Humboldt County
KEN R. McCARTY, Super. Ct. No. CR2402504)
Defendant and Appellant.

Ken R. McCarty pleaded guilty to attempted voluntary
manslaughter (Pen. Code, §§ 664, 192, subd. (a))1 in connection
with an incident in which he used a semiautomatic pistol to shoot
at his then-girlfriend. In this appeal, he challenges the trial
court’s decision to deny him probation and to sentence him to
prison. Because his challenge lacks merit, we affirm.

BACKGROUND

A.

The shooting occurred one evening in August 2024 when
McCarty and his girlfriend, Jane Doe, were at his house.
McCarty, who was 49 at the time, was “much older” than Doe.
According to the probation officer’s report, Doe was reportedly
concerned due to McCarty’s “emotional and intoxicated state,” so
she moved some of his firearms to another part of the house.
McCarty had four firearms in the house, three of which were not

1 Undesignated statutory references are to the Penal Code.

1
registered to him. After McCarty caught her moving his guns, he
grabbed his registered semiautomatic pistol and fired a shot at
Doe. The round missed Doe, instead passing through a wall of
the house and eventually through the exterior wall of McCarty’s
next door neighbor’s house, where it ended up on a bedroom floor.
In her later statement to the trial court, Doe recounted that
McCarty shot at her while she was trying to leave his house.
When he shot at her, she “became very scared. [She] didn’t move,
and [she] ducked and . . . hid. [She] managed to escape[,]
running as fast as [she] could, scared, shaking[,] and utterly
terrified.” The neighbor’s family was home at the time but was
unharmed.

McCarty reported that he “passed out” for several hours.
When the police were finally able to make contact with him,
hours after the incident, he stated that “nothing had happened
and he did not remember firing a firearm that night.” The police
observed that McCarty “appeared intoxicated and was confused
as to why” the authorities were at his house with a SWAT team.

McCarty pleaded guilty to attempted voluntary
manslaughter (§§ 664, 192, subd. (a)) as part of a plea agreement.
He also admitted that he personally used a firearm for purposes
of an enhancement under section 12022.5, subdivision (a).

B.

When McCarty was interviewed for the probation officer’s
presentence report approximately six months after the shooting,
he maintained that when he awoke from having passed out, he
noticed that several items in his house were knocked over or on
the floor, his wallet was missing, and Doe had left. He “was
adamant that he did not fire a weapon in the home.” According
to McCarty, he usually slept on his right side, and when he woke
up his hearing in his left ear was damaged, “which [wa]s a
relatively good indication . . . that he did not fire the weapon.”
McCarty shared that “this entire episode has been nothing short
of a nightmare for him” and that “he is extremely thankful that
nobody was injured or killed.” In the six months since the
shooting, he had stayed sober and had a chance to “reflect on his
life and the mess that his alcoholism had made of it.” McCarty

2
was willing to comply with the terms and conditions of probation,
if granted. The probation officer observed that McCarty
“paint[ed] a picture where he is the victim” and “suggest[ed]
[Doe] was the actual person who pulled the trigger and fired the
pistol.” The probation officer noted that it was possible that
McCarty’s “level of intoxication fogged his memory to such an
extent that he does not remember exactly what happened.”

McCarty reported to the probation officer that he began
drinking with “regularity” at age 30, after his grandmother died,
and that his drinking became “heavier” by age 36, when his
cousin passed away. In 2010, he attended a recovery program
and Alcoholics Anonymous meetings. In 2012, McCarty suffered
his first misdemeanor conviction for driving under the influence
of alcohol (DUI). (Veh. Code, § 23152, subd. (a).) When he went
through a divorce in 2021, it “was a serious turning point for the
worse and he began drinking about a fifth of hard alcohol . . . on a
daily basis, up until the time of his arrest in the present matter.”
McCarty acquired two additional misdemeanor DUI convictions
in 2021 and 2024. (Ibid.). He was on probation for the 2024
conviction at the time of the shooting.

The probation report indicated that McCarty’s risk for
reoffending was “low.” The probation officer also assessed
McCarty for risk of domestic violence and concluded that his
possession of firearms, including unregistered ones, “presents
particular concerns.”

At the February 2025 sentencing hearing, Doe asserted
that in McCarty’s romantic relationship with her, he was
“controlling and demanding while trying to groom” her. She
described herself as “vulnerable” and maintained that McCarty
took advantage of her. Doe asserted that McCarty “has a severe
alcohol problem and anger issues,” which “contribute[] to his
unstable mentality.” He slept with a gun under his pillow and
made her do the same, and he was “always on alert for
intruders[,] ready to shoot at any given moment.” She asserted
that McCarty was a danger to the community.

Doe related that since the shooting, she had developed post-
traumatic stress disorder. She became “terrified to walk alone in

3
public,” she “jump[ed] at loud noises,” and she “became
untrusting of . . . people in general.”

Subsequently, at the continued sentencing hearing in April
2025, McCarty read a statement to the trial court in which he
acknowledged that his “actions put both the victim Jane Doe and
my neighbors in potential danger” and he said, “I take full
accountability for my behavior.” He expressed “deep[] regret” for
his “reckless misactions” and the harm he caused, and he
apologized to the victims. McCarty stated that he was working to
better himself and he presented certificates indicating that while
in custody, he had completed courses in anger management,
emotional regulation, building healthy relationships, and
substance abuse.

McCarty’s daughter, Allison Mayo, also made a statement
at the April 2025 hearing. Mayo stated that she had never seen
her father “show serious aggression toward[ ] another human
being” or threaten to take someone’s life. McCarty was involved
in the community and in her upbringing, and he had a strong
work ethic. His time in custody had “helped him greatly,
especially during the recovery of his alcohol addiction.”

McCarty presented numerous letters of support from
friends and family members who spoke about his good character
as a parent, former business owner, and community volunteer.
Several letters expressed surprise or disbelief that McCarty could
ever be violent, although one letter indicated that, when he drank
alcohol, he became “a completely different person” and showed
his “bad side.”

C.

The trial court denied McCarty’s request for probation and
sentenced him to an aggregate term of seven years in prison.
McCarty’s sentence was comprised of a middle term of three
years for the attempted manslaughter, with a consecutive middle
term of four years for the gun enhancement.

With respect to probation, the trial court applied section
1203, subdivision (e)(2), which provides that a person “who used,

4
or attempted to use, a deadly weapon upon a human being in
connection with the perpetration of the crime of which that
person has been convicted,” is ineligible for probation “[e]xcept in
unusual cases in which the interests of justice would best be
served if the person is granted probation.” The court concluded
that no unusual circumstances existed and also found McCarty
unsuitable for probation.

DISCUSSION

McCarty contends that the trial court abused its discretion
in concluding that he had not overcome the presumption of
ineligibility for probation under section 1203, subdivision (e)(2),
and in finding him unsuitable for probation. Assuming for the
purposes of this opinion that McCarty established that he was
eligible for probation, we discern no error in the court’s
conclusion that he was not a suitable candidate.

The trial court has “broad discretion” to decide whether a
defendant is suitable for probation, and we may not reverse its
decision unless the court’s decision exceeded the bounds of
reason. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1120;
People v. Kingston (2019) 41 Cal.App.5th 272, 278; People v.
Stuart (2007) 156 Cal.App.4th 165, 179.) We will not disturb the
court’s exercise of discretion, even if reasonable minds might
disagree, so long as the court “has considered all facts bearing on
the offense and the defendant to be sentenced.” (People v. Vargas
(1975) 53 Cal.App.3d 516, 532-533 (Vargas); accord Kingston, at
p. 278; People v. Delson (1984) 161 Cal.App.3d 56, 63 (Delson);
People v. Downey (2000) 82 Cal.App.4th 899, 910.)

Under rule 4.414 of the California Rules of Court, factors
relevant to a defendant’s suitability for probation include:
whether the defendant was armed or used a weapon; the victim’s
vulnerability; whether the defendant caused physical or
emotional injury; whether the defendant actively participated in
the offense; the defendant’s prior criminal record and whether it
“indicates a pattern of . . . increasingly serious criminal conduct”;
the defendant’s prior performance on probation; the defendant’s
willingness to comply with the terms of probation; the
defendant’s ability to comply with the terms of probation;

5
whether the defendant is remorseful; and the likelihood that the
defendant will pose a danger to others if not imprisoned. (Cal.
Rules of Court, rule 4.414(a)-(b); see also Pen. Code, § 1203, subd.
(b)(3) [providing that, in determining suitability for probation,
the trial court shall determine whether there are “circumstances
in mitigation of the punishment prescribed by law or [whether]
the ends of justice would be served by granting probation”].)

Here, the trial court considered the probation report,
McCarty’s statement in court, the statement from Mayo, the
letters of support and other materials McCarty submitted, Doe’s
statement, the circumstances of the offense, and the parties’
arguments. The court recognized McCarty’s work ethic, his
previous ownership of a business, and his “potential for being a
productive person,” as well as the fact that he has a supportive
family and community. However, other factors weighed against
probation.

The trial court pointed to McCarty’s criminal record and
performance on probation (Cal. Rules of Court, rule 4.414(b)(1)-
(2)), concluding that he was an “unremorseful and unrepentant
alcoholic” who was unable to “turn things around” after three
DUI convictions. McCarty, who was on probation for his third
DUI conviction at the time of the current offense, continued his
alcohol abuse despite the fact that, as a condition of his
probation, “he was prohibited from even having alcohol in his
possession.” At the same time, McCarty provided no evidence or
assurance that if he were released, he would be accepted into and
committed to a “significant and long-term” recovery program,
which the court believed was necessary to ensure the safety of the
community. (See id., rule 4.414(b)(8).) As a result, the court
found it was unlikely that McCarty would be able to “refrain from
the use of alcohol” if released on probation. (See id., rule
4.414(b)(4).)

The trial court also pointed to the impact on the victims.
(Cal. Rules of Court, rule 4.414(a)(4).) McCarty’s actions had
“deeply affected” and endangered Doe, and he endangered his
neighbor’s family, including a young child.

6
Further, the trial court found that, notwithstanding his
belated statement accepting responsibility, McCarty lacked
remorse. (Cal. Rules of Court, rule 4.414(b)(7).) The court
observed that he displayed “disdain” for Doe’s victim impact
statement and, through the time of the February hearing, he had
not acknowledged any wrongdoing. The court referenced the
probation report, which indicated that six months after the
shooting, McCarty denied firing the gun and suggested that Doe
was the culprit.

In addition, McCarty used a weapon (Cal. Rules of Court,
rule 4.414(a)(2)) and, as the one who shot the gun, was an active
participant in the crime (id., rule 4.414(a)(6)).

McCarty asserts that there were “many factors” favoring
probation, including that his prior criminal record included only
misdemeanor convictions, he had no record of violence, the
probation officer found that he was at a low risk for reoffending,
and his strong letters of support characterized him as a
“generous, hard[-]working family man.” However, McCarty does
not argue that the trial court failed to consider these
circumstances. Indeed, McCarty largely does not dispute the
factors that the court found weigh against probation, nor does he
argue that any of the court’s findings are unsupported by
substantial evidence.

With respect to the trial court’s finding that he lacked
remorse, McCarty notes that his reaction to Doe’s statement “did
not necessarily” reflect that he was unremorseful. In so doing,
McCarty implicitly acknowledges that the court’s finding to the
contrary was sufficiently supported by the record.

McCarty also maintains that his alcoholism should be a
mitigating factor in this case, citing People v. Reyes (1987) 195
Cal.App.3d 957. Reyes recognized that alcoholism could be
considered a mitigating factor where a defendant who “ha[s]
made a serious effort to cope with their substance abuse
problems” commits a crime during a period of relapse. (Id. at p.
964.) However, when a defendant with a substance abuse
problem “has failed to deal with the problem despite repeated
opportunities, where the defendant shows little or no motivation

7
to change his life style, and where the substance abuse problem is
a substantial factor in the commission of crimes, the need to
protect the public from further crimes by that individual” does
not support treating the substance abuse problem as a mitigating
factor. (Id. at p. 963.)

In the circumstances here, we are unpersuaded that the
trial court abused its discretion in declining to treat McCarty’s
alcoholism as a mitigating factor. In light of McCarty’s repeated
alcohol-related offenses and his performance on probation, the
court was reasonably concerned that he would continue to
endanger public safety on probation. McCarty admitted to the
probation officer that up until his arrest in this case, he had been
drinking “a fifth of hard alcohol . . . on a daily basis” since his
divorce in 2021, despite multiple convictions for driving while
intoxicated, indicating that his drinking the night of the shooting
was far from an isolated event. Further, McCarty presented no
medical evidence and only limited evidence on his commitment to
recovery. His evidence indicated that after his arrest in this case,
he was able to remain sober for about six months and he passed a
substance abuse recovery course. Although McCarty’s nascent
efforts should be acknowledged, he was in custody (presumably
with no access to alcohol) for all but approximately three and a
half weeks of the six-month period, and he provided no details
about the length of the course he took or its content. Nor did he
point to a specific long-term recovery program that he was
committed to attending.

Ultimately, the trial court considered all the relevant
circumstances and applied the correct legal standard, and the
court’s findings were based on substantial evidence. The fact
that reasonable minds might disagree on whether probation is
warranted does not justify interference with the court’s exercise
of discretion. (See Delson, supra, 161 Cal.App.3d at p. 63
[holding that the court’s probation decision was not an abuse of
discretion even where “there were ample facts before the court to
warrant a grant of probation”]; see also Vargas, supra, 53
Cal.App.3d at p. 533.) The court did not err in determining that
McCarty was unsuitable for probation.

8
In light of our conclusion, we need not reach McCarty’s
argument that he overcame the presumption that he was
ineligible for probation under section 1203, subdivision (e)(2).

DISPOSITION

The judgment is affirmed.

BURNS, J.

WE CONCUR.

SIMONS, Acting P. J.

CHOU, J.

A173362/People v. McCarty

9