P. v. Rynhard

Filed 4/20/07 P. v. Rynhard CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JEFFERY ALLEN RYNHARD,
Defendant and Appellant.
H030009
(Santa Clara County
Super. Ct. No. CC577995)
A jury convicted defendant Jeffery Allen Rynhard of 15 counts of lewd and
lascivious conduct with a child under 14. (Pen. Code, § 288, subd. (a).) The trial court
sentenced defendant to 34 years in prison, which involved the trial court’s reliance on
aggravating facts so as to impose consecutive sentences. It also imposed a $70 AIDS
education fine and a related $119 penalty assessment. On appeal, defendant contends
that (1) the trial court’s imposition of the consecutive terms violated his constitutional
right to have his sentence based only on facts found by a jury (Apprendi v. New Jersey
(2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296), and (2) the trial court
erred by imposing the fine and assessment. The People concede defendant’s second
point, and we agree that the concession is appropriate. We otherwise disagree with
defendant. We therefore modify the judgment and affirm.
BACKGROUND
The trial court announced its reasons for consecutive sentences as follows:
“Pursuant to Rules of Court 4.425, Court [sic] finds that the crimes involved were

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separate acts and were committed at different times; Rules of Court 4.421(a)11, the
defendant took advantage of a position of trust; 4.421(a)(b)(2), defendant’s prior
convictions as an adult are numerous, they also have increasing seriousness; and (b)(5),
defendant’s prior performance on probation was unsatisfactory. I state these reasons in
the determining [sic] whether or not the sentence imposed in this case should be run
concurrent or consecutive.”
In imposing the fine and assessment, the trial court stated that it was doing so
pursuant to Penal Code section “288 (a) (m).”
DISCUSSION
The California Supreme Court has held that “a jury trial is not required on the
aggravating factors that justify imposition of consecutive sentences.” (People v. Black
(2005) 35 Cal.4th 1238, 1262, overruled on another ground in Cunningham v. California
(2007) 549 U.S. __ [127 S.Ct. 856]; accord State v. Kahapea (Hawai’i 2006) 141 P.3d
440, 451-453 [collecting cases].) That holding was not overturned by Cunningham.
(People v. Hernandez (2007) 147 Cal.App.4th 1266, 1269-1271). Thus, “entrusting to
trial courts the decision whether to impose concurrent or consecutive sentencing under
California’s sentencing laws is not precluded by the decisions in Apprendi, Blakely, and
Cunningham. In this state, every person who commits multiple crimes knows he or she is
risking consecutive sentencing. While such a person has the right to the exercise of the
court’s discretion, the person does not have a legal right to concurrent sentencing, and as
the Supreme Court said in Blakely, ‘that makes all the difference insofar as judicial
impingement upon the traditional role of the jury is concerned.’ ” (Id. at p. 1271.)
Defendant concedes as much and raises the Apprendi/Blakely issue in order to
preserve it for further review.
Penal Code section 288a, subdivision (m), authorizes an AIDS education fine not
to exceed $70 against persons convicted of violating section 288a. Defendant, however,

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was convicted of violating section 288, subdivision (a). Section 288, subdivision (a),
does not provide for imposition of an AIDS education fine.
DISPOSITION
The judgment is modified to strike the $70 fine and related $119 penalty
assessment. As so modified, the judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.

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