¶51 (concurring in part and dissenting in part) — I agree with those portions of the majority opinion holding that the evidence was sufficient to support the properly instructed jury’s verdict that Fero was guilty of first degree assault of a child for inflicting grievous bodily harm on the 15-month-old girl she was babysitting.2 But I dissent from that portion of the opinion holding that Blakely violations are structural errors requiring automatic reversal.
Quinn-Brintnall, C.J.¶52 On the same day that the United States Supreme Court issued its opinion in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), it issued Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. *1032d 442 (2004). In Summerlin, the Court was asked to determine whether its decision in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (announcing a defendant’s right to a jury trial on aggravating factors formerly considered by a court at sentencing), as applied to death penalty decisions in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), was a procedural or substantive change in the law. If substantive, i.e., “altering the range of conduct or the class of persons that the law punishes,” the Apprendi rule would be applied retroactively to death penalty cases already final on direct review; if procedural, i.e., “regulating only the manner of determining the defendant’s culpability,” Apprendi’s jury trial right on sentencing factors would apply only prospectively. Summerlin, 124 S. Ct. at 2523. The Summerlin majority concluded that Ring’s holding was procedural:
Ring’s holding is properly classified as procedural. Ring held that “a sentencing judge, sitting without a jury, [may not] find an aggravating circumstance necessary for imposition of the death penalty.” [Ring, 536 U.S. at 609]. Rather, “the Sixth Amendment requires that [those circumstances] be found by a jury.” [Ring, 536 U.S. at 609]. This holding did not alter the range of conduct Arizona law subjected to the death penalty. It could not have; it rested entirely on the Sixth Amendment’s jury-trial guarantee, a provision that has nothing to do with the range of conduct a State may criminalize. Instead, Ring altered the range of permissible methods for determining whether a defendant’s conduct is punishable by death, requiring that a jury rather than a judge find the essential facts bearing on punishment. Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules, a conclusion we have reached in numerous other contexts.
Summerlin, 124 S. Ct. at 2523 (first and third alteration in original). The Court also rejected Summerlin’s argument that even if the rule was procedural, it would fall under the retroactivity exception for “ ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Summerlin, 124 S. Ct. at 2520 (quoting Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. *1041257, 108 L. Ed. 2d 415 (1990)). Citing Blakely, the Court noted:
The question here is not, however, whether the Framers believed that juries are more accurate factfinders than judges (perhaps so—they certainly thought juries were more independent). Nor is the question whether juries actually are more accurate factfinders than judges (again, perhaps so). Rather, the question is whether judicial factfinding so “seriously diminishes” accuracy that there is an “ ‘impermissibly large risk’ ” of punishing conduct the law does not reach. The evidence is simply too equivocal to support that conclusion.
Summerlin, 124 S. Ct. at 2525 (citations omitted).
¶53 There are two consequences that flow from Summerlin’s ruling characterizing Apprendi as procedural. First, as a procedural rule, the jury fact-finding requirement does not apply to cases already final on direct review. Summerlin, 124 S. Ct. at 2523. Secondly, as a procedural rule, its violation cannot be a structural error requiring automatic reversal. Instead, violations of Apprendi’s jury fact-finding requirement are subject to review under the constitutional harmless error test.
¶54 The Supreme Court demonstrated its view that a constitutional harmless error test properly applied to Apprendi violations in United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002). In Cotton, the government conceded that the indictment failed to allege a fact (drug quantity) that increased the statutory maximum sentence and rendered the defendant’s enhanced sentence erroneous under Apprendi and Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999). The government also conceded that the error was plain and could be raised for the first time on appeal. The Court, however, concluded as follows:
The third inquiry is whether the plain error “affected substantial rights.” This usually means that the error “must have affected the outcome of the district court proceedings.” [United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)]. Respondents argue that an indictment error *105falls within the “limited class” of “structural errors,” [Johnson v. United States, 520 U.S. 461, 468-69, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997),] that “can be corrected regardless of their effect on the outcome,” [Olano, 507 U.S. at 735]. Respondents cite Silber v. United States, 370 U.S. 717[, 82 S. Ct. 1287, 8 L. Ed. 2d 798] (1962) (per curiam), and Stirone v. United States, [361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960),] in support of this position. The Government counters by noting that Johnson’s list of structural errors did not include Stirone or Silber, and that the defendants in both of these cases preserved their claims at trial.
As in Johnson, we need not resolve whether respondents satisfy this element of the plain-error inquiry, because even assuming respondents’ substantial rights were affected, the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. The error in Johnson was the District Court’s failure to submit an element of the false statement offense, materiality, to the petit jury. The evidence of materiality, however, was “overwhelming” and “essentially uncontroverted.” We thus held that there was “no basis for concluding that the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’ ”
The same analysis applies in this case to the omission of drug quantity from the indictment. The evidence that the conspiracy involved at least 50 grams of cocaine base was “overwhelming” and “essentially uncontroverted.” . . . Surely the grand jury, having found that the conspiracy existed, would have also found that the conspiracy involved at least 50 grams of cocaine base.
.... The real threat then to the “fairness, integrity, and public reputation of judicial proceedings” would be if respondents, despite the overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial.
Cotton, 535 U.S. at 632-34 (footnotes and some citations omitted).
¶55 Although Summerlin and Cotton addressed issues of retroactivity and issue preservation, each analysis rests on the Court’s ruling that Apprendi jury fact-finding violations *106are procedural rather than “substantive” (Summerlin) or “structural” (Cotton). Blakely’s extension of the Apprendi jury fact-finding requirements to exceptional sentences is necessarily the application of a procedural and not structural requirement and any violation is subject to harmless error review under the constitutional overwhelming uncontroverted evidence test. See, e.g., State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996).
¶56 In holding that Blakely errors are structural and require automatic reversal, the majority relies on Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). There, the Court held that a constitutionally deficient reasonable doubt instruction requires automatic reversal. Sullivan, 508 U.S. at 278-82. At first blush, the following passage from Sullivan supports today’s majority:
The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.
Sullivan, 508 U.S. at 279. But the United States Supreme Court has never held that automatic reversal is required when a jury does not decide every element of a crime. Indeed, in Neder v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), the Court held that when applied to an element omitted from a jury instruction and, thus, never formally decided, the error is harmless if uncontroverted evidence supports the reviewing court’s finding of the element beyond a reasonable doubt. See also Cotton, 535 U.S. at 633 (no automatic reversal where grand jury did not find that the conspiracy involved at least 50 grams of cocaine). I fail to see how, under Neder, an appellate court may find harmless the absence of a jury finding of an element beyond a reasonable doubt but may not find harmless the absence of a sentencing element *107under identical circumstances, especially when the element was found by the trial judge. Simply put, while relieving the burden of proof, as in Sullivan, is a “structural” error (because neither judge nor jury ever finds the elements beyond a reasonable doubt), no such structural error exists when the jury finds all elements beyond a reasonable doubt and the judge, rather than the jury, finds disputed sentencing factors.
¶57 Whatever the allure and wisdom might be in the first instance of the majority’s easily applied ruling, I cannot agree that the Apprendi/Blakely jury fact-finding requirement is a structural change. On the same day it issued its opinion in Blakely, this nation’s highest court determined its rule forbidding a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty is procedural. That decision necessarily controls here and we must apply the constitutional harmless error test to Blakely violations.
¶58 In my view, applying this constitutional harmless error test to the evidence presented to Fero’s jury establishes conclusively that the 15-month-old victim was vulnerable because of her young age and that, as the victim’s caregiver, Fero had a responsibility to protect the victim from harm. Error in failing to submit these factors to the jury for determination was harmless beyond a reasonable doubt. The uncontroverted evidence presented at trial was so overwhelming that no jury on finding beyond a reasonable doubt that Fero assaulted the child (inflicting a subdural hematoma; bilateral hemorrhages; a laceration on the inside of her labia; large bruises on her cheeks, chin, chest, the area above her vagina, and on the labia majora; and an oblique spiral fracture of her left tibia) would not also have found, if instructed to do so, that Fero owed a duty to protect the child as the child’s babysitter, and that a 15-month-old child was vulnerable and by virtue of her age unable to protect herself from Fero’s assault.
¶59 Thus, on this record, the trial court’s failure to submit aggravating sentencing factors to the jury for delib*108eration as required by Blakely, was harmless error. I would affirm Fero’s conviction and sentence in all respects and respectfully dissent from that portion of the majority opinion to the contrary.
Review granted and case remanded to the Court of Appeals at 154 Wn.2d 1032 (2005).
I also agree with the majority decision to adopt the rationale and holding of State v. Harris, 123 Wn. App. 906, 99 P.3d 902 (2004), allowing for the convening of a jury at the sentencing proceeding. I note that more than 20 years ago our Supreme Court set precedent for such remedy. In State ex rel. Herron v. Browet, Inc., 103 Wn.2d 215, 691 P.2d 571 (1984), our Supreme Court superimposed a case law due process requirement for a jury trial onto a contempt statute that did not otherwise provide for trial by jury. Browet, 103 Wn.2d at 220; RCW 7.48.080 (moral nuisance).