The court properly sentenced appellant to the upper term where he had nine prior convictions for driving while intoxicated. The court rejected a Blakely v. Washington (2004) 159 L.Ed.2d 403 challenge to the upper term sentence, finding that the Supreme Court has preserved the exception for prior convictions under Almendarez-Torres v. United States (1998) 523 U.S. 224. Thus, the court properly relied on defendants prior convictions in imposing sentence. To the extent that the court might have erred in considering defendants prior prison term and performance on parole, the Court of Appeal found the error harmless beyond a reasonable doubt. Justice Scotland wrote a concurring opinion in which he found the Blakely error to have been waived by defendants failure to object.