The judicial fact finding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 124 S.Ct. 2531. Blakely and United States v. Booker (2005) 125 S.Ct. 738 established a constitutionally significant distinction between a sentencing scheme that permits judges to engage in the type of judicial fact finding traditionally involved in the exercise of discretion employed in selecting a sentence from within the range prescribed for an offense, and a sentencing scheme that assigns to judges the type of fact finding role traditionally exercised by juries in determining the existence or nonexistence of elements of an offense. The court determined that an upper term under California law constitutes a “statutory maximum,” and thus a trial courts imposition of an upper term sentence does not violate a defendants right to a jury trial. The level of discretion afforded to the judge in imposing the upper term rather than the middle term, based on all the circumstances of the case, distinguishes the decision to impose an upper term sentence under the California scheme from the decision to impose an exceptional sentence under the Washington state system. Under Washington law as cited in Blakely, an exceptional sentence may be imposed only in unusual cases. Furthermore, the decision to impose a concurrent or consecutive term is well within the traditional discretion of a judge and does not require factual findings by a jury.