The Cunningham error in this case was harmless because the jury would have found an aggravating circumstance true beyond a reasonable doubt. The trial court imposed the upper term on appellant’s incest and oral copulation convictions finding that the crime involved planning and taking advantage of a position of trust. Appellant alleged Cunningham error on appeal and the California Supreme Court remanded the case to the Court of Appeal for reconsideration in light of People v. French (2008) 43 Cal.4th 36. The court rejected respondent’s forfeiture argument because there was no express waiver of rights here, which is required under French. The Court of Appeal agreed there was Cunningham error because the aggravating factors were not found by a jury, admitted by appellant, or based on prior convictions. However, the court found the error harmless because it had no doubt the jury would have found that appellant took advantage of a position of trust, as he was the single parent of his victim daughter.