People v. Rushin CA3 ( 2024 )

Filed 9/16/24 P. v. Rushin CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C099365
v. (Super. Ct. Nos. 20FE005337,
22FE012374)
DAMON GERALD RUSHIN,
Defendant and Appellant.
A jury convicted defendant Damon Gerald Rushin of cruelty to an animal. In a
separate case defendant pleaded no contest to unlawfully possessing methamphetamine
while armed with a firearm and taking and driving a vehicle without the owner’s consent.
The trial court sentenced defendant to an aggregate prison term of 10 years eight months.
Defendant now contends (1) the trial court should not have relied on the animal’s
vulnerability as an aggravating circumstance in imposing a consecutive sentence on the
animal cruelty conviction, and (2) if his contention is forfeited for failure to object in the
trial court, his trial counsel provided ineffective assistance.
1
We conclude (1) the record does not support defendant’s challenge to the
consecutive sentence, and (2) because we exercise our discretion to address the first
contention on the merits, we need not address defendant’s ineffective assistance claim.
We will affirm the judgment.
BACKGROUND
In case No. 22FE012374, the jury found defendant guilty of cruelty to an animal.
The jury also found true an allegation that the victim was particularly vulnerable.
Following the trial, defendant pleaded no contest in case No. 20FE005337 to unlawfully
possessing methamphetamine while armed with a loaded, operable firearm, and to taking
and driving a vehicle without the owner’s consent. Defendant admitted a prior serious
felony conviction.
The trial court sentenced defendant in both cases, explaining its reasoning and
sentence as follows:
“All right. The Court has, as counsel knows, sat through the trial in this case. It
was a very disturbing case, to say the least. While the pain and suffering inflicted upon
[the dog] was not, I would say, a form of active abuse, it was severe neglect. And
[defendant]’s conduct allowed the dog to suffer needlessly from neglect.
“While I agree that the pendulum is swinging towards rehabilitation, it is clear
from [defendant’s] record, as I pointed out earlier, that he has not taken the opportunity to
attempt to rehabilitate himself notwithstanding the three prior prison terms he has served.
“In imposing these midterm sentences the Court has considered, in the [cruelty to
an animal] case, the jury’s finding that the victim was particularly vulnerable in violation
of [California Rules of Court, rule] 4.421(a)(3) to be true. The Court has also considered
the circumstances in aggravation alleged in [the methamphetamine and vehicle theft]
case.
2
“[Defendant] is statutorily ineligible for probation pursuant to Penal Code
[s]ections 667[, subdivision] (c)(2) and 1170.12[, subdivision] (a)(2); therefore, state
prison sentence is mandatory.
“It is the [judgment] and sentence of this court that as to [the possession of
methamphetamine offense], [defendant] shall be committed to state prison for the
midterm of three years, doubled to six years pursuant to Penal Code [s]ections
667[, subdivision] (e)(1) and 1170.12[, subdivision] (c)(1). The Court designates this
count to be the principal term.
“As to [the driving or taking a vehicle without consent offense], [defendant] shall
be committed to state prison for one-third the midterm of 8 months doubled to 16 months
pursuant to [s]ections 667[, subdivision] (e)(1), and 1170.12[, subdivision] (c)(1) of the
Penal Code.
“As to [the cruelty to an animal offense], [defendant] shall be committed to state
prison for one-third the midterm, 8 months, doubled to 16 months pursuant to Penal Code
[s]ection[s] 667[, subdivision] (e)(1) and 1170.12[, subdivision] (c)(1).
“As a Penal Code [s]ection 12022.1 allegation was found true or admitted as to
each docket, only one may be imposed as the defendant was arrested while out on bail on
only one occasion. Therefore, an additional 2-year consecutive term is imposed. The
Court imposes consecutive sentences because the crimes were committed at different
times or separate places pursuant to [California] Rule[s] of Court[, rule] 4.425(a)(3).
“The aggregate state prison term shall be 10 years, 8 months.”
DISCUSSION
I
Defendant contends the trial court should not have relied on the dog’s
vulnerability as an aggravating circumstance in imposing a consecutive sentence on the
animal cruelty conviction. The record does not support his contention.
3
A trial court’s decision is presumed to be correct, and the appealing party must
affirmatively demonstrate error on the face of the record. (People v. Davis (1996)
50 Cal.App.4th 168, 172.) Unless shown otherwise, we interpret the record in the light
most favorable to the judgment. (People v. Garcia (1997) 56 Cal.App.4th 1349, 1357.)
Defendant has not established that the trial court imposed a consecutive sentence
because of the dog’s vulnerability. The trial court stated expressly that it imposed a
consecutive sentence because the crimes were committed at different times or separate
places. (Cal. Rules of Court, rule 4.425(a)(3).) Although the trial court mentioned the
dog’s vulnerability earlier in the hearing, there is no indication the reference had any
connection to the imposition of a consecutive sentence. Defendant’s contention lacks
merit.
II
Defendant further contends that if his challenge to the consecutive sentence is
forfeited for failure to object in the trial court, his trial counsel provided ineffective
assistance. Because we have exercised our discretion to address the first contention on
the merits, we need not address defendant’s ineffective assistance claim.
DISPOSITION
The judgment is affirmed.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
DUARTE, J.
4