P. v. Bjorn
jury convicted defendant Lee Thomas Bjorn of nine counts of lewd conduct with a minor under the age of 14. (Pen. Code, 288, subd. (a).) In addition, the jury found the facts necessary to establish that the prosecution was commenced within the extended statute of limitations set forth in former section 803, subdivision (g) (hereafter section 803(g)). The court imposed an upper term of eight years on one count and consecutive two-year terms on the other eight counts for a total sentence of 24 years in prison.
On appeal from the judgment, defendant claimed that the prosecution was time barred. He also claimed that the court erred in (1) denying his motion to suppress; (2) admitting evidence of uncharged sexual misconduct; (3) giving CALJIC No. 2.50.01; (4) refusing an instruction that explained why an oral admission must be viewed with caution; (5) failing to expressly instruct the jury that factual allegations related to sentencing must be proved beyond a reasonable doubt; and (6) failing to stay the term for one count.
In our original opinion, we rejected defendants claims and affirmed the judgment. Concerning his claim that the court failed to properly instruct jurors on the burden of proof for factual allegations related to sentencing, defendant conceded, and we agreed, that at the time, the claim was foreclosed by the holding in People v. Black (2005) 35 Cal.4th 1238 (Black). (See Auto Equity Sales, Inc. v.Superior Court (1962) 57 Cal.2d 450, 455.) Later, however, in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), the United States Supreme Court disagreed with Black, vacated it, and remanded it to the California Supreme Court for reconsideration in light of Cunningham. (Black v. California (Feb. 20, 2007, No. 05-6793) U.S.[127 S.Ct. 1210].) Thereafter, the United States Supreme court vacated our original decision, recalled the remittitur, and remanded it to us for further consideration.
Having done so, Court again affirm the judgment.
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