Blakely v. Washington precludes a trial court’s determination of facts not found by the jury or admitted by the defendant (other than those arising out of a prior conviction) as a basis for imposing an upper term sentence. Because the maximum penalty the court can impose without making additional factual findings is the mid term, Blakely applies. Here, the trial court relied on five aggravating factors. The trial court was entitled to rely only on the fact that George was on probation at the time of the charged offense as a basis for the imposition of the upper term. Concerning the other aggravating factors, (i.e. the crime was serious and involved great bodily injury, the crime involved sophistication), George was entitled to a jury trial on those facts under Blakely. Since it cannot be concluded that the elimination of the other four cited factors would not have made a difference in the sentence choice, remand is required. Further, the waiver rule of Scott was inapplicable, since Blakely was decided after George’s sentencing.