Blakely error is not “structural” but is subject to the harmless beyond a reasonable doubt standard. (Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546].) Here the jury found appellant guilty of a vandalism where the evidence established a significant amount of loss and other acts of malice that the judge then relied on to justify the upper term. None of the facts were contested. The appellate court found that no reasonable jury would fail to find that these malicious acts had occurred and that they were sufficient to justify the upper term.