In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi), the United States Supreme Court held that, as a general rule, the Sixth and Fourteenth Amendments to the federal Constitution require that the existence of any fact increasing a defendant’s sentence beyond the “statutory maximum” be determined by the *710jury, based on proof beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) The high court acknowledged there might be a narrow exception to this rule when the prosecution seeks to prove the “fact of a prior conviction” (ibid.), but the court also considered it “arguable” that its decision in Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350, 118 S.Ct. 1219] (Almendarez-Torres), the origin of this exception, was “incorrectly decided” (Apprendi, supra, 530 U.S. at p. 489).
Because in Apprendi, supra, 530 U.S. 466, the high court itself has cast doubt on the continuing vitality of the “fact of a prior conviction” exception to the jury trial requirement, this court should construe it narrowly. Instead, the majority reads it broadly, applying it to this case even though the Apprendi court’s justifications for the exception are inapplicable here. According to the majority, it is proper for a trial court to deny a defendant a jury trial, with a beyond-a-reasonable-doubt standard of proof, not only on the fact of a prior conviction but also on the truth or falsity of factual allegations pertaining to the conduct that gave rise to a prior conviction, even though those allegations were not elements of the prior offense. I disagree.
In my view, when 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, as here: (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.
Here, the trial court sentenced defendant to a term of 90 years to life in prison, based on its finding that defendant had acted with the requisite state of mind in committing two crimes of which he was convicted in Nevada many years earlier. The courts that accepted defendant’s guilty pleas to the prior crimes never decided whether he acted with that mental state, because his guilt of those offenses did not turn on whether he acted with that state of mind. Defendant has never admitted that he acted with that mental state when he committed either crime. Thus, in denying defendant’s request that a jury, applying a beyond-a-reasonable-doubt standard of proof, determine whether he acted with the requisite mental state when he committed the two prior offenses, the trial court here violated defendant’s rights under the Sixth and Fourteenth Amendments.
I
Defendant was charged with numerous felonies not pertinent here. It was also alleged, for purposes of sentence enhancement, that defendant had been *711previously convicted in Nevada of two robberies, and that each of those convictions was for conduct constituting a “strike” under California’s “Three Strikes” law. (Pen. Code, § 1170.12.)1 The trial court bifurcated the trial on the prior convictions from the trial of the offenses charged in this case, and a jury convicted defendant of most of the charges.
Whether defendant’s two prior Nevada convictions for robbery qualify as strikes under California’s Three Strikes law is a difficult issue. Under our law, a prior conviction is a strike if the conviction is for a “serious felony” as defined in subdivision (c) of section 1192.7. Robbery is listed in that provision. Nevada’s robbery statute, however, differs from California law in at least two respects: (1) The Nevada statute requires only that the defendant act with general criminal intent, whereas in California the defendant must act with the specific intent to permanently deprive the victim of the property taken. (2) Under Nevada law, robbery is committed if property is taken by placing the victim in fear of either present or future harm to a person in the victim’s company (Nev. Rev. Stat., § 200.380); by contrast, although in California taking property by placing the victim in fear of immediate harm to a companion is robbery, taking property by placing the victim of fear of future harm to the companion is not robbery (§§211, 212) but extortion (§§ 518, 519), which is generally not a strike (see §§ 1192.7, 667.5, subd. (c)).2 Therefore, in Nevada a robbery conviction can be based on conduct that under California law would not be robbery, and thus would not qualify as a serious felony strike.
When, as here, the elements of the crime underlying a defendant’s out-of-state prior conviction do not make that offense a strike under California law, the conviction is nevertheless a strike if the conduct that gave rise to it would be a serious felony, and thus a strike, under California law. (People v. Avery (2002) 27 Cal.4th 49, 53 [115 Cal.Rptr.2d 403, 38 P.3d 1]; People v. Woodell (1998) 17 Cal.4th 448, 453 [71 Cal.Rptr.2d 241, 950 P.2d 85].) But in that situation, the prosecution may not call witnesses to establish the defendant’s prior conduct; rather, it can rely only on conduct shown in the record of the proceedings pertaining to the prior conviction. (Woodell, supra, at p. 453.) The purpose of that limitation is to “bar[] the prosecution from relitigating the circumstances of a crime committed years ago . . . thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.” (People v. Guerrero (1988) 44 Cal.3d 343, 355 [243 Cal.Rptr. *712688, 748 P.2d 1150]; see also People v. Reed (1996) 13 Cal.4th 217, 223 [52 Cal.Rptr.2d 106, 914 P.2d 184].)
Defendant here denied that the conduct underlying his two Nevada convictions for robbery would qualify as serious felonies under California law, and he asked for a jury trial on the issue. The trial court denied the request. After examining the preliminary hearing transcripts of defendant’s Nevada convictions, the trial court found that the conduct underlying those prior robbery convictions satisfied the elements of robbery under California law. The only issue the trial court submitted to a jury was whether the records of defendant’s prior convictions were authentic; the jury so determined. The trial court sentenced defendant under the Three Strikes law to a prison term of 90 years to life. Defendant appealed.
The Court of Appeal held that the trial court violated defendant’s right to a jury trial, with proof beyond a reasonable doubt, when it denied his request to have a jury determine whether his prior Nevada robberies constituted “serious felonies” under California law. But the Court of Appeal nevertheless affirmed the judgment, based on its conclusion that the trial court’s error did not prejudice defendant. This court granted review.
II
Two decisions of the high court are pertinent here: Almendarez-Torres, supra, 523 U.S. 224, and Apprendi, supra, 530 U.S. 466.
In Almendarez-Torres, the defendant pled guilty to illegally returning to the United States after having been deported. The maximum sentence under federal law for that crime was two years unless the previous deportation resulted from a conviction for an aggravated felony, in which case the maximum sentence became 20 years. The trial court sentenced the defendant to seven years and one month in prison based on its finding that he had been deported for three aggravated felonies. The high court upheld that determination, rejecting the defendant’s contention that the federal Constitution gave him the right to a jury trial, with proof beyond a reasonable doubt, on the question of whether he had been convicted of an aggravated felony. (Almendarez-Torres, supra, 523 U.S. at pp. 239-247.)
Some two years later, the high court decided Apprendi, supra, 530 U.S. 466. In that case, the defendant pled guilty to an offense that ordinarily carried a maximum penalty of 10 years in prison, but New Jersey law permitted imposition of a greater prison term if the trial court found by a preponderance of the evidence that the defendant committed the crime because of racial bias. The trial court so found, and it imposed a prison term of 12 years.
*713The parties’ plea bargain had preserved the defendant’s right to challenge the constitutionality of the New Jersey law that allowed the trial court to decide the truth of the racial bias allegation under a preponderance of the evidence standard. The United States Supreme Court held that the law was unconstitutional, and that the defendant was entitled to a jury trial, with a beyond-a-reasonable-doubt standard of proof, on the question of whether his commission of the crime was because of racial bias. As to whether this holding was consistent with its then recent decision in Almendarez-Torres, supra, 523 U.S. 224, the high court observed it was “arguable that Almendarez-Torres was incorrectly decided.” (Apprendi, supra, 530 U.S. at p. 489.) The court concluded, however, that it need not decide whether to overrule its decision in Almendarez-Torres because it was distinguishable in three respects: (1) The defendant in Almendarez-Torres “had admitted the three earlier convictions for aggravated felonies” (Apprendi, supra, 530 U.S. at p. 488); (2) those admissions “had been entered pursuant to proceedings with substantial procedural safeguards” (ibid.) which included the right to a jury trial and proof beyond a reasonable doubt on contested issues of fact; and (3) at issue in Almendarez-Torres was the defendant’s recidivism, “ ‘a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence’ ” (ibid.). The high court in Apprendi went on to say that “[ojther 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, italics added.)3 At issue here is whether, under that “fact of a prior conviction” exception, it was proper for the trial court rather than a jury to determine not merely the existence of defendant’s two prior Nevada convictions for robbery, but also facts pertaining to the conduct that gave rise to the prior convictions.
To resolve that issue I look to the first and second of the three reasons for the exception to the jury trial right that the high court carved out in Apprendi: (1) whether the defendant admitted the prior convictions, and (2) whether those admissions occurred with “substantial procedural safeguards” (Apprendi, supra, 530 U.S. at p. 488). I do not consider the third reason, that recidivism “ ‘is a traditional . . . basis for a sentencing court’s increasing an offender’s *714sentence’ ” (ibid.), because the United States Supreme Court recently abandoned that ground. In United States v. Booker, supra, 543 U.S. 220, in which the high court applied its holding in Apprendi to the federal sentencing guidelines, the court said that traditional judicial authority “does not provide a sound guide to enforcement of the Sixth Amendment’s guarantee of a jury trial in today’s world.” (Id. at p. 236.)
Here, defendant never admitted the factual allegations pertaining to the 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 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.
The majority here insists that “the nature of the inquiry required . . . under California law ... is not ... a determination or finding ‘about the [defendant’s earlier] conduct itself.’ ” (Maj. opn., ante, at p. 706.) “Instead,” the majority says, “it is a determination regarding the nature or basis of the defendant’s prior conviction—specifically, whether that conviction qualified as a conviction of a serious felony.” (Ibid., italics added and omitted.) Thus, the majority concludes that the Court of Appeal was wrong when it held that the trial court made a factual determination pertaining to the conduct underlying defendant’s two prior convictions for robbery in Nevada.
I disagree. The only way to determine the “nature or basis” of a defendant’s prior conviction is to determine the conduct that gave rise to that conviction. Indeed, the majority recognizes this elsewhere in its opinion, when it explains that a trial court, to decide whether an out-of-state prior conviction is a strike, must determine “whether the conviction realistically may have been based on conduct that would not constitute a felony under California law.” (Maj. opn., ante, at p. 706, italics added.) Moreover, as this court explained nearly 20 years ago, California’s law imposing increased penalties for prior convictions “refers to conduct, not a specific crime.” (People v. Guerrero, supra, 44 Cal.3d at p. 355.) This court has repeatedly explained that in determining the truth of an alleged prior conviction when, as *715here, the necessary elements of that conviction do not establish that it is a serious felony, and thus subject to California’s Three Strikes law, the trier of fact must decide whether the defendant’s conduct, as demonstrated in the record of the prior conviction, shows that the crime was a serious felony. (See, e.g., People v. Avery, supra, 27 Cal.4th at p. 53 [“To qualify as a serious felony, a conviction from another jurisdiction must involve conduct that would qualify as a serious felony in California”]; People v. Kelii (1999) 21 Cal.4th 452, 457 [87 Cal.Rptr.2d 674, 981 P.2d 518] [describing the determination as a “factual inquiry”]; People v. Woodell, supra, 17 Cal.4th at p. 453 [trier of fact must determine “ ‘whether the offense . . . involved conduct which satisfies all of the elements of the comparable California serious felony offense’ ”].)
True, there is an unusual limitation on the type of evidence that the prosecution may use to prove the conduct underlying a defendant’s prior conviction: It may rely only on matters appearing in the record of the prior conviction. This limitation appears to be the basis for the majority’s conclusion here that the trial court determined the “nature or basis” of defendant’s two prior convictions rather than the conduct underlying those convictions. (Maj. opn., ante, at p. 706.) As I have explained earlier, the purpose of this limitation is to protect defendants from “harm akin to double jeopardy and denial of speedy trial.” (People v. Guerrero, supra, 44 Cal.3d at p. 355.) It is ironic indeed that the majority uses a rule designed to protect the accused from one type of unfairness as the basis for subjecting the accused to a far greater unfairness: denial of the right to a jury trial, with proof beyond a reasonable doubt, on the truth or falsity of factual allegations that determine whether the accused can be sentenced to a term of life imprisonment under California’s Three Strikes law.
Ill
Having concluded above that the trial court violated defendant’s constitutional right to a jury trial on the facts underlying his two prior convictions, the remaining question is whether this error requires reversal of the judgment.
The Court of Appeal held that the error was harmless. Applying the test for “non-structural” constitutional error the high court articulated in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824], the Court of Appeal concluded that, beyond a reasonable doubt, the sentence enhancement allegations would have been found true had the issue been submitted to a jury with a beyond-a-reasonable-doubt standard of proof. It is unclear, however, whether that is the applicable test. Pending before the United States Supreme Court is Washington v. Recuenco (2005) 546 U.S. 960 [163 L.Ed.2d 362, 126 S.Ct. 478], which will decide whether Apprendi error *716is a “structural” error and thus reversible per se, or whether Chapman’s harmless-beyond-a-reasonable-doubt standard applies. The high court has already heard argument in Recuenco, and it will decide the case before the court’s current term ends in July 2006, which is just a few weeks away. Given that circumstance, I would vacate submission of this matter pending the outcome of Recuenco. Once the high court has decided Recuenco, I would then recalendar this case for oral argument and decide the question of prejudice by applying whatever harmless error standard the high court adopts in Recuenco.
Werdegar, J., concurred.
Unless otherwise stated, all statutory references are to the Penal Code.
Defendant contends that the California and Nevada statutes also differ in that in California, unlike Nevada, taking property by means of fear of future harm to the victim (as opposed to a companion) is extortion, not robbery. The Attorney General, however, argues that such an act would be robbery in California as well as in Nevada. I agree with the majority and the Court of Appeal that the dispute need not be resolved here.
In Apprendi, the United States Supreme Court said that a defendant’s right to jury trial, with proof beyond a reasonable doubt, on facts that increase the sentence beyond the statutory maximum is based on the due process clause of the Fourteenth Amendment. (Apprendi, supra, 530 U.S. at p. 469.) But more recent decisions by the high court say that Apprendi is based on the Sixth Amendment’s right to jury trial, and do not mention the Fourteenth Amendment. (United States v. Booker (2005) 543 U.S. 220, 232 [160 L.Ed.2d 621, 125 S.Ct. 738]; Blakely v. Washington (2004) 542 U.S. 296, 298, 305, 308-312 [159 L.Ed.2d 403, 124 S.Ct. 2531].) In my view, Apprendi is best viewed as being based on both amendments: Its requirement of a jury trial originates in the Sixth Amendment, and its requirement of proof beyond a reasonable doubt is mandated by the due process clause of the Fourteenth Amendment.