As the United States Supreme Court has recently stated, “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham v. California (2007) 549 U.S. 270, 274-275 [166 L.Ed.2d 856, 127 S.Ct. 856, 860], italics added; see also Blakely v. Washington (2004) 542 U.S. 296, 301 [159 L.Ed.2d 403, 124 S.Ct. 2531]; Apprendi v. New Jersey (2000) 530 U.S. 466, 488-490 [147 L.Ed.2d 435, 120 S.Ct. 2348].) In part II of its opinion here, the majority applies that rule to certain recidivism-related provisions of the California Rules of Court that, at the time of defendant’s trial, permitted trial courts to impose a sentence above the statutory maximum if the defendant had “served a prior prison term” (Cal. Rules of Court, rule 4.421(b)(3)), if the defendant “was on probation or parole when the crime was committed” (id., rule 4.421(b)(4)), or if “[t]he defendant’s prior performance on probation or parole was unsatisfactory” (id., rule 4.421(b)(5)).
The majority holds that the federal Constitution’s right to a jury trial does not apply to determinations that the defendant has served a prior prison term or was on probation or parole when the crime was committed (maj. opn., ante, at p. 81). With regard to a defendant’s performance on probation or parole, the majority holds that the jury trial right does not apply if, while on probation or parole, the defendant committed new crimes resulting in convictions (id. at p. 82); the right to a jury trial does, however, apply if “poor performance on probation or parole can be established only by facts other than the defendant’s prior convictions” (ibid.). I agree with these conclusions. But in its analysis of these issues, the majority relies heavily (see maj. opn., ante, at pp. 79-80) on People v. McGee (2006) 38 Cal.4th 682 [42 Cal.Rptr.3d 899, 133 P.3d 1054] (McGee), a case in which I dissented. Below, I explain why the majority’s holdings are consistent with my dissent in McGee.1
*90I
In McGee, supra, 38 Cal.4th 682, the defendant was convicted in California of several crimes not pertinent here, and the prosecution sought to increase his sentence for those crimes based on two prior robbery convictions suffered in Nevada. Under California law, the prior robberies could be used to increase the defendant’s sentence only if they satisfied California’s statutory definition of robbery. But as the defendant pointed out, Nevada’s definition of robbery is not identical to California’s. Nevada, unlike California, does not require that a robbery have the elements of specific intent to permanently deprive the victim of property and placing the victim in fear of immediate harm.
Thus, at issue in McGee was whether the lack of any findings on those two statutory elements in the Nevada courts entitled the defendant to have a jury in California, where he was on trial, determine whether these elements had been satisfied when he committed the Nevada robberies. The majority in McGee held that the defendant did not have the right to such a determination by the jury, and that instead the California trial court could, after examining the records of those prior Nevada convictions, decide that the conduct underlying the defendant’s two Nevada robbery convictions satisfied California’s statutory definition of robbery. (McGee, supra, 38 Cal.4th at pp. 686-687.) I disagreed.
I explained in McGee: “[W]hen the prosecution seeks to increase a defendant’s sentence based on a prior conviction, the Sixth and Fourteenth Amendments to the federal Constitution entitle the defendant to a jury trial, with proof beyond a reasonable doubt, on facts pertaining to the conduct underlying the prior conviction when . . . (1) those facts were never determined by a jury or by the court that convicted the defendant of the prior offense, (2) those facts were never admitted by the defendant, and (3) those facts, if found true, would increase the defendant’s sentence beyond the statutory maximum.” (McGee, supra, 38 Cal.4th at p. 710 (dis. opn. of Kennard, J.), italics added.)
Applying that standard to the Nevada convictions at issue in McGee, I reasoned: “[Defendant never admitted the factual allegations pertaining to *91the conduct underlying his prior Nevada convictions that are now being used in California to increase his sentence. (He never admitted that he committed the two robberies in Nevada with the intent to permanently deprive the victims of their property, and that he placed the victims or persons in the victims’ company in fear of immediate injury.) The [Nevada] trial courts that accepted defendant’s guilty pleas to the two robbery offenses never determined the truth of those factual allegations, and they did not provide defendant with any procedural safeguards pertaining to those allegations, because his guilt of the Nevada offenses did not turn on the truth or falsity of those allegations. The trial court in this case, based on its determination that the factual allegations relating to the prior robbery convictions were true, imposed a sentence beyond the statutory maximum. Thus, by denying defendant a jury trial on the truth of those factual allegations, the trial court violated defendant’s Sixth and Fourteenth Amendment rights to a jury trial.” (McGee, supra, 38 Cal.4th at p. 714 (dis. opn. of Kennard, J.).)
At issue here is whether, before an aggravated sentence can be imposed, a defendant is entitled to a jury determination that the defendant had “served a prior prison term” (Cal. Rules of Court, rule 4.421(b)(3)), that the defendant “was on probation or parole when the crime was committed” (id., rule 4.421(b)(4)), or that “[t]he defendant’s prior performance on probation or parole was unsatisfactory” (id., rule 4.421(b)(5)). The first two of these circumstances—the defendant’s service of a prior prison term and the defendant’s being on probation or parole when the crime was committed—do not (unlike McGee, supra, 38 Cal.4th 682) require a determination of any factual questions pertaining to the defendant’s conduct. Rather, the only possible factual issues that may arise—whether the defendant was on probation when the current crime was committed, and whether the defendant had served a prior prison term—can be resolved simply by examining the defendant’s criminal record. As the majority here points out, “the circumstance of a prior prison term or of probation or parole status ordinarily is well documented in the same type of official records used to establish the fact and nature of a prior conviction—court records, prison records, or criminal history records maintained by law enforcement agencies.” (Maj. opn., ante, at p. 81, fn. omitted.) I agree with the majority that on these matters, a defendant has no right to a jury trial.
With regard to the third aggravating circumstance mentioned above—the defendant’s prior performance on probation or parole was unsatisfactory— this presents a factual issue that is based on the defendant’s conduct. Under the reasoning of my dissenting opinion in McGee, supra, 38 Cal.4th 682, the defendant should ordinarily be entitled to a jury trial on this question, and the majority here so holds. (Maj. opn., ante, at pp. 82-83.) But, as the majority notes, sometimes a defendant’s unsatisfactory performance is shown by the defendant’s conviction of a crime committed while the defendant was on *92probation or parole. In these instances the defendant has already received the right to a jury trial on the underlying factual issues in the earlier proceeding that resulted in the new conviction. In the words of the majority: “When a defendant’s prior unsatisfactory performance on probation or parole is established by his or her record of prior convictions, it seems beyond debate . . . that the right to a jury trial does not apply.” (Maj. opn., ante, at p. 82.) I agree.
II.
For the reasons given above, I agree with the majority’s application here of the principles the high court set forth in Cunningham v. California, supra, 549 U.S. 270, Blakely v. Washington, supra, 542 U.S. 296, and Apprendi v. New Jersey, supra, 530 U.S. 466.
Part II. of the majority opinion also holds that in this case the trial court did not violate defendant’s right to a jury trial because at least two of the aggravating circumstances on which *90the trial court relied to sentence defendant to the upper term of imprisonment were established in a manner permitted by Cunningham v. California, supra, 549 U.S. 270. I agree with this holding, which necessarily follows from this court’s decision in People v. Black (2007) 41 Cal.4th 799 [62 Cal.Rptr.3d 569, 161 P.3d 1130] (Black II). Part in. of the majority opinion holds that the trial court can, in deciding whether to sentence a defendant to the upper term, consider facts pertaining to charges of which the defendant was acquitted, so long as (as in this case) at least one aggravating circumstance was established in accordance with Cunningham. I agree with the majority’s resolution of this issue as well.