Marshall

Certified for Partial Publication. [*]

Defendant, Phillip Cameron Marshall, appeals from his conviction for first degree murder. (Pen.Code, [1] § 187, subd. (a).) He was also found to have personally used and intentionally discharged a firearm in the commission of the murder. (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b), (c) & (d).) Defendant argues the trial court committed instructional error and abused its discretion in admitting a photograph of the victim into evidence. In the published portion of the opinion, we discuss the effect of the June 26, 2000, decision of the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 on the trial court's failure to correctly instruct the jury on the elements of a section 12022.53, subdivision (d) firearm use enhancement. We affirm the judgment.

We view the evidence in a light most favorable to the judgment. ( Jackson v. Virginia (1979) 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 ; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909 ; People v. Osband (1996) 13 Cal.4th 622, 690 , 55 Cal.Rptr.2d 26 , 919 P.2d 640 .) At approximately 4 p.m. on December 3,…