I agree with the majority’s conclusion that Penal Code section 1025, subdivision (c) does not completely eliminate the right to a jury trial on prior conviction allegations. But only under compulsion of People v. Wiley (1995) 9 Cal.4th 580 [38 Cal.Rptr.2d 347, 889 P.2d 541] (Wiley) and People v. Vera (1997) 15 Cal.4th 269 [62 Cal.Rptr.2d 754, 934 P.2d 1279] (Vera) do I concur in the majority’s further conclusion that the erroneous denial of a jury in this case was harmless error.
Article I, section 16 of the California Constitution provides that “[t]rial by jury is an inviolate right and shall be secured to all . . . .” Despite that declaration, this court held in Wiley that “there is no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement . . . .” (Wiley, supra, 9 Cal.4th at p. 589.) Building upon Wiley, this court concluded in Vera that a defendant who failed to object to a court trial on prior conviction allegations thereby waived his right to a jury trial. (Vera, supra, 15 Cal.4th at pp. 274-281.) I dissented from both decisions.
*31As I have previously explained, the essential but unstated premise of Vera, supra, 15 Cal.4th 269, was that the erroneous denial of the right to jury trial on prior conviction allegations is not a structural error that mandates reversal regardless of prejudice; “[b]y parity of reasoning, a violation of the right is subject to harmless error analysis.” (People v. Kelii (1999) 21 Cal.4th 452, 459 [87 Cal.Rptr.2d 674, 981 P.2d 518] (cone. & dis. opn. of Werdegar, J.) (Kelii).) Today the majority makes this premise explicit and, thus, finds no prejudice in the trial court’s erroneous denial of a jury trial over defendant’s timely objection.
Today’s decision, and the holding in Vera, supra, 15 Cal.4th 269, are difficult to reconcile with article VI, section 13 of the state Constitution. This provision speaks to the reversal of judgments on appeal for trial errors and bars reversal except when “the error complained of has resulted in a miscarriage of justice.” (Ibid.)1 The provision expressly subjects “misdirection of the jury” to harmless error analysis (e.g., People v. Wims (1995) 10 Cal.4th 293, 314-315 [41 Cal.Rptr.2d 241, 895 P.2d 77]) but makes no mention of the erroneous denial of a jury trial. Since the same document declares the right to a jury to be “inviolate” and “secured to all” (Cal. Const., art. I, § 16), the drafters’ silence concerning denial of the right may reasonably be attributed to their assumption that denial, a greater error than misdirection, would obviously be recognized by the courts as a miscarriage of justice per se. This explanation surely is more plausible than the alternative, which is to assume that the drafters meant by their silence to include the erroneous denial of a jury in the final, catchall provision subjecting to harmless error analysis “any error as to any matter of procedure” (Cal. Const., art. VI, § 13), even while specifically mentioning the lesser error of “misdirection” (ibid.).
We might be justified in treating erroneous denials of the right to a jury as mere “matter[s] of procedure” (Cal. Const., art. VI, § 13) if it were true, as this court concluded in Wiley, that “there is no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement . . . .” (Wiley, supra, 9 Cal.4th at p. 589.) But Wiley's assumption has been invalidated, in large part, by the United States Supreme Court’s decision in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi). In Apprendi, the high court held that, other than the bare fact of a prior conviction, “any fact that *32increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [120 S.Ct. at pp. 2362-2363].) To be sure, even after Apprendi the federal Constitution does not appear to require trial by jury of the narrow factual question identified in Penal Code section 1025, subdivision (c), namely, “whether the defendant is the person who has suffered the prior conviction . . . .” But a more fundamental question remains: to what extent was our sweeping rejection under the California Constitution of any right to a jury trial on “factual issues relating to prior convictions alleged for purposes of sentence enhancement” (Wiley, supra, 9 Cal.4th at p. 589) based on assumptions about the traditional, respective roles of courts and juries that Apprendi has invalidated? At the least we may no longer assert, as this court did in Wiley, that “the ability of courts to make factual findings in conjunction with the performance of their sentencing functions never has been questioned.” (Wiley, at p. 586.) In withdrawing sentencing issues from the jury, as in Kelii, supra, 21 Cal.4th 452 and Wiley, and in failing to reverse when a jury trial is erroneously denied, as here and in Vera, supra, 15 Cal.4th 269, I believe this court may have intruded too far into an “inviolate” right. (Cal. Const., art. I, § 16.)2
In short, these considerations leave me less than satisfied with the majority’s conclusion that the erroneous denial of defendant’s right to a jury can be excused as harmless error. Nevertheless, I recognize that Vera, supra, 15 Cal.4th 269, effectively compels that conclusion by holding that a defendant waives the right if he fails to object to its denial. Of course the majority is correct that defendant cannot show prejudice—in the sense of a “reasonable] probability of] a result more favorable” to him (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243])—had a jury rather than the court tried the allegations: absent the remote possibility of nullification, no reason exists to believe a jury might have reached a different result than the court. Precedent therefore requires my concurrence in this formalistic application of Watson, which Vera in effect requires the court to apply. Yet, for the reasons set out above, I suspect our decisions in this area need to be reexamined.
“No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, §13.)
The majority implicitly recognizes that our prior decisions may have gone too far when it expressly leaves unanswered the question “how Apprendi would apply were we faced with a situation like that at issue in Kelii, where some fact needed to be proved regarding the circumstances of the prior conviction—such as whether a prior burglary was residential—in order to establish that the conviction is a serious felony.” (Maj. opn., ante, at p. 28.)