Apprendi rule in California

2025(Cf. People v. Allen (2023) 96 Cal.App.5th 573 , 578.) The Apprendi Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490 ; Erlinger v. United States (2024) 602 U.S. 821, 834-835 [ 219 L.Ed.2d 451 ] [Apprendi rule rooted in the Fifth and Sixth Amendments].) In compliance with this precept, section 1170(b)(2) provides that courts may exceed the middle term “only when there are circumstances in agg

2025Those decisions broadly construed Apprendi’s exception to the jury trial right for “the fact of a prior conviction” (Apprendi, supra, 530 U.S. at p. 490 ) to encompass “other related issues” (Black, at p. 819) concerning a “defendant’s criminal history” or “ ‘[r]ecidivism’ ” (id. at p. 818; accord, Towne, at pp. 75–81).

2023(People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [applying Chapman v. California (1967) 386 U.S. 18 , 24 standard to Apprendi error].) 7 DISPOSITION The judgment is vacated and the matter is remanded with directions for the trial court to reverse the strike finding and to conduct further sentencing proceedings consistent with this opinion.

2013(Sengpadychith, supra, 26 Cal.4th at p. 320 .) “[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” (Neder v. U.S. (1999) 527 U.S. 1, 17 .) Defendant argues that he did contest the amount of funds diverted by “presenting evidence that he had used all of the funds provided to pay for labor and materials,…” (Italics added.) But this evidence contested the non-omitted elements o

2023The Apprendi rule has been applied to judicial factfinding that results in increased maximum or minimum prison sentences ( Apprendi, supra, 530 U.S. at pp. 468–469; Alleyne, supra, 570 U.S. at pp. 103, 108), criminal fines (Southern Union Co. v. United States (2012) 567 U.S. 343, 346 (Southern Union)), the imposition of a “new mandatory minimum prison term” upon the revocation of conditional release (United States v. Haymond (2019) 588 U.S. ___ [ 139 S.Ct. 2369, 2380 , 204 L.Ed.2d 897, 907 ] (Haymond) (plur. opn. of Gorsuch, J.)), and death sentences 12 ( Ring, supra, 536 U.S. at pp. 588–589).

2023The Apprendi rule has been applied to judicial factfinding that results in increased maximum or minimum prison sentences ( Apprendi, supra, 530 U.S. at pp. 468–469; Alleyne, supra, 570 U.S. at pp. 103, 108), criminal fines (Southern Union Co. v. United States (2012) 567 U.S. 343, 346 (Southern Union)), the imposition of a “new mandatory minimum prison term” upon the revocation of conditional release (United States v. Haymond (2019) 588 U.S. ___ [ 139 S.Ct. 2369, 2380 , 204 L.Ed.2d 897, 907 ] (Haymond) (plur. opn. of Gorsuch, J.)), and death sentences 12 ( Ring, supra, 536 U.S. at pp. 588–589).

2021Code, § 667, subd. (a)(1)), based on his claim of ineffective assistance of counsel,” citing Apprendi, Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 ] (Blakely), and Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 ] (Cunningham).4 (In re Cabrera (July 10, 2019, S256165) review granted.) As directed by the Supreme Court, we vacated our order denying the petition and issued an order to show cause, returnable to the trial court. 4 In Apprendi, the court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

2021Code, § 667, subd. (a)(1)), based on his claim of ineffective assistance of counsel,” citing Apprendi, Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 ] (Blakely), and Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 ] (Cunningham).4 (In re Cabrera (July 10, 2019, S256165) review granted.) As directed by the Supreme Court, we vacated our order denying the petition and issued an order to show cause, returnable to the trial court. 4 In Apprendi, the court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

2025(Catarino, supra, 14 Cal.5th at p. 757.) Catarino observed that section 667.6, subdivision (d) “does not change what is a ‘full’ term or otherwise define the sentence for any particular offense,” but rather “requires that the term already authorized (§ 288, subd. (b)(1)) be meted out as a full term,” and thus “does not define or alter the term for any particular offense in a manner that invades the historical province of the jury.” (Catarino, supra, 14 Cal.5th at p. 756.) In reaching this conclusion, Catarino relied on Oregon v. Ice (2009) 555 U.S. 160 (Ice), where the Supreme Court held that

2025(Catarino, supra, 14 Cal.5th at p. 757.) Catarino observed that section 667.6, subdivision (d) “does not change what is a ‘full’ term or otherwise define the sentence for any particular offense,” but rather “requires that the term already authorized (§ 288, subd. (b)(1)) be meted out as a full term,” and thus “does not define or alter the term for any particular offense in a manner that invades the historical province of the jury.” (Catarino, supra, 14 Cal.5th at p. 756.) In reaching this conclusion, Catarino relied on Oregon v. Ice (2009) 555 U.S. 160 (Ice), where the Supreme Court held that

2023Apprendi error is subject to the harmless error analysis under Chapman v. California (1967) 386 U.S. 18 .

2023(People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [applying Chapman v. California (1967) 386 U.S. 18 , 24 standard to Apprendi error].) 7 DISPOSITION The judgment is vacated and the matter is remanded with directions for the trial court to reverse the strike finding and to conduct further sentencing proceedings consistent with this opinion.

2019For example, an Apprendi issue was avoided in Towne , supra , 44 Cal.4th 63 , 78 Cal.Rptr.3d 530 , 186 P.3d 10 because the defendant had no right to a jury trial on his record of prior convictions, rendering the defendant eligible for the upper term based on that aggravating circumstance alone. ( Id. at pp. 83, 86, 78 Cal.Rptr.3d 530 , 186 P.3d 10 ; see generally Almendarez-Torres v. U.S. (1998) 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 .) It was in this context that the court could further consider evidence the jury had implicitly found not true through its acquittals on other counts. (

2019For example, an Apprendi issue was avoided in Towne , supra , 44 Cal.4th 63 , 78 Cal.Rptr.3d 530 , 186 P.3d 10 because the defendant had no right to a jury trial on his record of prior convictions, rendering the defendant eligible for the upper term based on that aggravating circumstance alone. ( Id. at pp. 83, 86, 78 Cal.Rptr.3d 530 , 186 P.3d 10 ; see generally Almendarez-Torres v. U.S. (1998) 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 .) It was in this context that the court could further consider evidence the jury had implicitly found not true through its acquittals on other counts. (

2016(People v. Jones (2009) 178 Cal.App.4th 853, 866 [ 100 Cal.Rptr.3d 780 ].) 14 Apprendi’s exception for prior convictions is based in part on the fact that “unlike virtually any other consideration used to enlarge the possible penalty for an offense, ... a prior conviction must itself have been established through procedures satisfying the fair' notice, reasonable doubt, and jury trial guarantees.” (Jones v. U.S. (1999) 526 U.S. 227, 249 [ 143 L.Ed.2d 311 , 119 S.Ct. 1215 ].) “[T]he certainty that procedural safeguards [are] attached to any ‘fact’ of [a] prior conviction . . . mitigatefs] the d

2016(People v. Jones (2009) 178 Cal.App.4th 853, 866 [ 100 Cal.Rptr.3d 780 ].) 14 Apprendi’s exception for prior convictions is based in part on the fact that “unlike virtually any other consideration used to enlarge the possible penalty for an offense, ... a prior conviction must itself have been established through procedures satisfying the fair' notice, reasonable doubt, and jury trial guarantees.” (Jones v. U.S. (1999) 526 U.S. 227, 249 [ 143 L.Ed.2d 311 , 119 S.Ct. 1215 ].) “[T]he certainty that procedural safeguards [are] attached to any ‘fact’ of [a] prior conviction . . . mitigatefs] the d

2023The Apprendi rule has been applied to judicial factfinding that results in increased maximum or minimum prison sentences ( Apprendi, supra, 530 U.S. at pp. 468–469; Alleyne, supra, 570 U.S. at pp. 103, 108), criminal fines (Southern Union Co. v. United States (2012) 567 U.S. 343, 346 (Southern Union)), the imposition of a “new mandatory minimum prison term” upon the revocation of conditional release (United States v. Haymond (2019) 588 U.S. ___ [ 139 S.Ct. 2369, 2380 , 204 L.Ed.2d 897, 907 ] (Haymond) (plur. opn. of Gorsuch, J.)), and death sentences 12 ( Ring, supra, 536 U.S. at pp. 588–589).

2023The Apprendi rule has been applied to judicial factfinding that results in increased maximum or minimum prison sentences ( Apprendi, supra, 530 U.S. at pp. 468–469; Alleyne, supra, 570 U.S. at pp. 103, 108), criminal fines (Southern Union Co. v. United States (2012) 567 U.S. 343, 346 (Southern Union)), the imposition of a “new mandatory minimum prison term” upon the revocation of conditional release (United States v. Haymond (2019) 588 U.S. ___ [ 139 S.Ct. 2369, 2380 , 204 L.Ed.2d 897, 907 ] (Haymond) (plur. opn. of Gorsuch, J.)), and death sentences 12 ( Ring, supra, 536 U.S. at pp. 588–589).

2023(People v. Davis (2005) 36 Cal.4th 510, 564 .) Thus, “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable doubt standard, unquestionably would have found true” the finding in question, “the Sixth Amendment error properly may be found harmless.” (People v. Sandoval (2007) 41 Cal.4th 825, 839 .) That standard is easily met here.

2016(People v. Davis (2005) 36 Cal.4th 510, 564 [ 31 Cal.Rptr.3d 96 , 115 P.3d 417 ].) Thus, “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true” the finding in question, “the Sixth Amendment error properly may be found harmless.” (People v. Sandoval (2007) 41 Cal.4th 825, 839 [ 62 Cal.Rptr.3d 588 , 161 P.3d 1146 ].) That standard is met here.

2024J., post, at pp. 32–34, fn. 8; see also conc. & dis. opn. of Kruger, J., post, at p. 13, fn. 2 [similarly suggesting a reviewing court should consider whether the individual facts a trial court relies on to justify an upper term sentence were actually necessary to the trial court’s exercise of its discretion].) But when a defendant is deprived of the Sixth Amendment’s jury trial right, the high court has consistently looked to whether the record demonstrates beyond a reasonable doubt that the jury would have made the required finding, and no further. ( Neder, supra, 527 U.S. at pp. 16–19; Recu

2022(Washington v. Recuenco (2006) 548 U.S. 212 , 221–222 [Apprendi error is not structural and does not require reversal if harmless beyond a reasonable doubt].) In assessing whether Apprendi error is harmless, the high court has instructed that the proper inquiry 6 PEOPLE v. PINEDA Liu, J., concurring is whether it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” (Neder v. United States (1999) 527 U.S. 1, 18 (Neder).) In conducting this inquiry, “a court, in typical appellate-court fashion, asks whether the record contains evidence

2024J., post, at pp. 32–34, fn. 8; see also conc. & dis. opn. of Kruger, J., post, at p. 13, fn. 2 [similarly suggesting a reviewing court should consider whether the individual facts a trial court relies on to justify an upper term sentence were actually necessary to the trial court’s exercise of its discretion].) But when a defendant is deprived of the Sixth Amendment’s jury trial right, the high court has consistently looked to whether the record demonstrates beyond a reasonable doubt that the jury would have made the required finding, and no further. ( Neder, supra, 527 U.S. at pp. 16–19; Recu

2022(Washington v. Recuenco (2006) 548 U.S. 212 , 221–222 [Apprendi error is not structural and does not require reversal if harmless beyond a reasonable doubt].) In assessing whether Apprendi error is harmless, the high court has instructed that the proper inquiry 6 PEOPLE v. PINEDA Liu, J., concurring is whether it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” (Neder v. United States (1999) 527 U.S. 1, 18 (Neder).) In conducting this inquiry, “a court, in typical appellate-court fashion, asks whether the record contains evidence

2023The Apprendi rule has been applied to judicial factfinding that results in increased maximum or minimum prison sentences ( Apprendi, supra, 530 U.S. at pp. 468–469; Alleyne, supra, 570 U.S. at pp. 103, 108), criminal fines (Southern Union Co. v. United States (2012) 567 U.S. 343, 346 (Southern Union)), the imposition of a “new mandatory minimum prison term” upon the revocation of conditional release (United States v. Haymond (2019) 588 U.S. ___ [ 139 S.Ct. 2369, 2380 , 204 L.Ed.2d 897, 907 ] (Haymond) (plur. opn. of Gorsuch, J.)), and death sentences 12 ( Ring, supra, 536 U.S. at pp. 588–589).

2023The Apprendi rule has been applied to judicial factfinding that results in increased maximum or minimum prison sentences ( Apprendi, supra, 530 U.S. at pp. 468–469; Alleyne, supra, 570 U.S. at pp. 103, 108), criminal fines (Southern Union Co. v. United States (2012) 567 U.S. 343, 346 (Southern Union)), the imposition of a “new mandatory minimum prison term” upon the revocation of conditional release (United States v. Haymond (2019) 588 U.S. ___ [ 139 S.Ct. 2369, 2380 , 204 L.Ed.2d 897, 907 ] (Haymond) (plur. opn. of Gorsuch, J.)), and death sentences 12 ( Ring, supra, 536 U.S. at pp. 588–589).

2021Code, § 667, subd. (a)(1)), based on his claim of ineffective assistance of counsel,” citing Apprendi, Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 ] (Blakely), and Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 ] (Cunningham).4 (In re Cabrera (July 10, 2019, S256165) review granted.) As directed by the Supreme Court, we vacated our order denying the petition and issued an order to show cause, returnable to the trial court. 4 In Apprendi, the court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

2021Code, § 667, subd. (a)(1)), based on his claim of ineffective assistance of counsel,” citing Apprendi, Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 ] (Blakely), and Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 ] (Cunningham).4 (In re Cabrera (July 10, 2019, S256165) review granted.) As directed by the Supreme Court, we vacated our order denying the petition and issued an order to show cause, returnable to the trial court. 4 In Apprendi, the court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

2023The Apprendi rule has been applied to judicial factfinding that results in increased maximum or minimum prison sentences ( Apprendi, supra, 530 U.S. at pp. 468–469; Alleyne, supra, 570 U.S. at pp. 103, 108), criminal fines (Southern Union Co. v. United States (2012) 567 U.S. 343, 346 (Southern Union)), the imposition of a “new mandatory minimum prison term” upon the revocation of conditional release (United States v. Haymond (2019) 588 U.S. ___ [ 139 S.Ct. 2369, 2380 , 204 L.Ed.2d 897, 907 ] (Haymond) (plur. opn. of Gorsuch, J.)), and death sentences 12 ( Ring, supra, 536 U.S. at pp. 588–589).

2023The Apprendi rule has been applied to judicial factfinding that results in increased maximum or minimum prison sentences ( Apprendi, supra, 530 U.S. at pp. 468–469; Alleyne, supra, 570 U.S. at pp. 103, 108), criminal fines (Southern Union Co. v. United States (2012) 567 U.S. 343, 346 (Southern Union)), the imposition of a “new mandatory minimum prison term” upon the revocation of conditional release (United States v. Haymond (2019) 588 U.S. ___ [ 139 S.Ct. 2369, 2380 , 204 L.Ed.2d 897, 907 ] (Haymond) (plur. opn. of Gorsuch, J.)), and death sentences 12 ( Ring, supra, 536 U.S. at pp. 588–589).

2018(See *479 Taylor, supra , 118 Cal.App.4th at pp. 28-30, 12 Cal.Rptr.3d 693 .) Apprendi error is also subject to harmless error analysis. ( Washington v. Recuenco (2006) 548 U.S. 212 , 221-222, 126 S.Ct. 2546 , 165 L.Ed.2d 466 ; United States v. Cotton (2002) 535 U.S. 625 , 627, 631-632, 122 S.Ct. 1781 , 152 L.Ed.2d 860 ; French, supra , 43 Cal.4th at pp. 52-53, 73 Cal.Rptr.3d 605 , 178 P.3d 1100 ; People v. Taulton (2005) 129 Cal.App.4th 1218 , 1226, 29 Cal.Rptr.3d 203 .) The cases finding Apprendi error subject to harmless error analysis typically address failures to submit alleged facts to t

2018(See *479 Taylor, supra , 118 Cal.App.4th at pp. 28-30, 12 Cal.Rptr.3d 693 .) Apprendi error is also subject to harmless error analysis. ( Washington v. Recuenco (2006) 548 U.S. 212 , 221-222, 126 S.Ct. 2546 , 165 L.Ed.2d 466 ; United States v. Cotton (2002) 535 U.S. 625 , 627, 631-632, 122 S.Ct. 1781 , 152 L.Ed.2d 860 ; French, supra , 43 Cal.4th at pp. 52-53, 73 Cal.Rptr.3d 605 , 178 P.3d 1100 ; People v. Taulton (2005) 129 Cal.App.4th 1218 , 1226, 29 Cal.Rptr.3d 203 .) The cases finding Apprendi error subject to harmless error analysis typically address failures to submit alleged facts to t

2020(Saez, at p. 1198.) Saez’s “stipulation to the complaint as the factual basis of his plea” did not “constitute a waiver of Sixth Amendment rights or an admission as to those additional facts.” (Id. at p. 1206.) It “was not tantamount to a finding that the facts in the affidavit of probable cause were true beyond a reasonable doubt or to an admission that those facts were true.” (Id. at p. 1207, fn. 21.) Thus, Saez does not assist the People’s argument. 11 California (1967) 386 U.S. 18, 24 ; see People v. French (2008) 43 Cal.4th 36 , 52–53 [applying Chapman standard to Sixth Amendment violatio

2018(See *479 Taylor, supra , 118 Cal.App.4th at pp. 28-30, 12 Cal.Rptr.3d 693 .) Apprendi error is also subject to harmless error analysis. ( Washington v. Recuenco (2006) 548 U.S. 212 , 221-222, 126 S.Ct. 2546 , 165 L.Ed.2d 466 ; United States v. Cotton (2002) 535 U.S. 625 , 627, 631-632, 122 S.Ct. 1781 , 152 L.Ed.2d 860 ; French, supra , 43 Cal.4th at pp. 52-53, 73 Cal.Rptr.3d 605 , 178 P.3d 1100 ; People v. Taulton (2005) 129 Cal.App.4th 1218 , 1226, 29 Cal.Rptr.3d 203 .) The cases finding Apprendi error subject to harmless error analysis typically address failures to submit alleged facts to t

2007I respectfully disagree, however, with the majority's conclusion the error in imposing upper term sentences was not harmless. [12] As the majority explains, the trial court's error in making the factual findings upon which it based its decision to impose the upper term sentences, rather than submitting those issues to the jury, is subject to harmless error analysis. ( Washington v. Recuenco (2006) 548 U.S. ___ , 126 S.Ct. 2546 , 165 L.Ed.2d 466 [Apprendi/Blakely error not "structural error" requiring automatic reversal]; see People v. Sengpadychith (2001) 26 Cal.4th 316, 327 , 109 Cal. Rptr.2d

2007I respectfully disagree, however, with the majority's conclusion the error in imposing upper term sentences was not harmless. [12] As the majority explains, the trial court's error in making the factual findings upon which it based its decision to impose the upper term sentences, rather than submitting those issues to the jury, is subject to harmless error analysis. ( Washington v. Recuenco (2006) 548 U.S. ___ , 126 S.Ct. 2546 , 165 L.Ed.2d 466 [Apprendi/Blakely error not "structural error" requiring automatic reversal]; see People v. Sengpadychith (2001) 26 Cal.4th 316, 327 , 109 Cal. Rptr.2d

2019For example, an Apprendi issue was avoided in Towne , supra , 44 Cal.4th 63 , 78 Cal.Rptr.3d 530 , 186 P.3d 10 because the defendant had no right to a jury trial on his record of prior convictions, rendering the defendant eligible for the upper term based on that aggravating circumstance alone. ( Id. at pp. 83, 86, 78 Cal.Rptr.3d 530 , 186 P.3d 10 ; see generally Almendarez-Torres v. U.S. (1998) 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 .) It was in this context that the court could further consider evidence the jury had implicitly found not true through its acquittals on other counts. (

2019For example, an Apprendi issue was avoided in Towne , supra , 44 Cal.4th 63 , 78 Cal.Rptr.3d 530 , 186 P.3d 10 because the defendant had no right to a jury trial on his record of prior convictions, rendering the defendant eligible for the upper term based on that aggravating circumstance alone. ( Id. at pp. 83, 86, 78 Cal.Rptr.3d 530 , 186 P.3d 10 ; see generally Almendarez-Torres v. U.S. (1998) 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 .) It was in this context that the court could further consider evidence the jury had implicitly found not true through its acquittals on other counts. (

2023Because the Apprendi rule did not then apply to findings that increased a mandatory minimum sentence ( Harris, supra, 536 U.S. at pp. 558–560), we had no occasion in Groves to consider whether a finding that triggers section 667.6(d) has the effect of increasing a mandatory minimum sentence; such an effect would have had, at that time, no constitutional significance.

2023Because the Apprendi rule did not then apply to findings that increased a mandatory minimum sentence ( Harris, supra, 536 U.S. at pp. 558–560), we had no occasion in Groves to consider whether a finding that triggers section 667.6(d) has the effect of increasing a mandatory minimum sentence; such an effect would have had, at that time, no constitutional significance.

2017The court’s analysis was based on the Apprendi rule that “ ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury . . . .” (Id. at p. 348, italics added.) As the Fourth Appellate District concluded in People v. Pangan (2013) 213 Cal.App.4th 574 , “neither Southern Union [nor] Apprendi . . . have any application to direct victim restitution, because direct victim restitution is not a criminal penalty.” (Id. at p. 585.) Therefore, the court held, defendant had no right to a jury trial on his restitution issue.

2017The court’s analysis was based on the Apprendi rule that “ ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury . . . .” (Id. at p. 348, italics added.) As the Fourth Appellate District concluded in People v. Pangan (2013) 213 Cal.App.4th 574 , “neither Southern Union [nor] Apprendi . . . have any application to direct victim restitution, because direct victim restitution is not a criminal penalty.” (Id. at p. 585.) Therefore, the court held, defendant had no right to a jury trial on his restitution issue.

2015(People v. Retanan (2007) 154 Cal.App.4th 1219, 1229 [weight of California authority holds Apprendi rule is not applicable to decisions made under § 654]; People v. Cleveland (2001) 87 Cal.App.4th 263 , 269–271 [§ 654 is sentencing reduction statute, so Apprendi’s rationale does not apply]; People v. Solis (2001) 90 Cal.App.4th 1002, 1022 [same].) DISPOSITION The judgment is affirmed. ___________________________ PEÑA, J.

2007(See People v. Cleveland (2001) 87 Cal.App.4th 263, 271 , 104 Cal.Rptr.2d 641 [finding any Apprendi error harmless because "[w]e have no doubt a jury would have reached the same conclusion under the reasonable doubt standard"].) The first aggravating circumstance identified by the court was that Diaz's repeated sexual assaults on his semi-conscious victim disclosed a high degree of cruelty, viciousness or callousness.

2016(See People v. Scott (1994) 9 Cal.4th 331, 354 ; People v. Wilson (2013) 219 Cal.App.4th 500, 518 .) Apprendi error, like failure to instruct on an element of an offense, is subject to harmless-error analysis under Chapman, supra, 386 U.S. at page 24 .

2007(See ( Washington v. Recuenco (2006) 548 U.S. ___ , 126 S.Ct. 2546 , 165 L.Ed.2d 466 [ Apprendi/Blakely error not "structural error" requiring automatic reversal]; see People v. Sengpadychith (2001) 26 Cal.4th 316, 327 , 109 Cal.Rptr.2d 851 , 27 P.3d 739 [ Apprendi error reviewable under the harmless error standard of Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. 824 ].) Here, however, despite the severity of the assault with a firearm, which also involved an attempted robbery of the liquor store during which Velasquez went behind the counter and pointed a shotgun at one of the sto