The imposition of the upper term does not require a jury finding of factors in aggravation. The Court of Appeal rejected the argument that error under Blakely v. Washington (2004) 124 S.Ct. 2531 was waived by defendant’s failure to object, citing In re Tahl (1969) 1 Cal.3d 122 for the proposition that a reviewing court should not find an implicit waiver of constitutional rights from a silent record. However, based on a detailed comparison of California’s sentencing law with the state law at issue in Blakely, the court concluded that Blakely did not apply to California’s determinate sentencing law, but would only apply to any findings that permitted a judge to exceed the upper term available for any given offense.