Resentencing was required where the court imposed the upper term solely on facts not admitted or found true by a jury. During appellant’s trial for possession of cocaine he was disruptive, and at one point stood up and said he was going to leave. The court ordered him taken into lockup and excluded him from the remainder of his trial. Following conviction, appellant was sentenced to an upper term after the court stated that it chose the upper term because appellant “tried to escape in my courtroom.” On appeal, he argued that the imposition of the high term violated the Sixth Amendment as interpreted by Apprendi, Blakely, and Cunningham. The appellate court agreed that the sentence was unconstitutional and must be vacated. First, appellant’s claim was not waived because it would have been futile for him to object. Further, the court imposed the high term on the sole basis of its factual findings that appellant’s conduct constituted escape, a fact not submitted to the jury or admitted. This violated appellant’s right to a jury trial. This was not a case in which the upper term was clearly warranted. While appellant also had numerous prior convictions, the court did not impose the sentence based on those convictions, and all of them were more than a decade old. Remand was required for the court to exercise its discretion and resentence appellant consistent with Cunningham.