A trial court violated the defendants right to a jury trial when it imposed an upper-term sentence based on its finding of factors in aggravation. A jury found defendant guilty of carjacking and personally using a firearm. The trial judge sentenced him to the upper term of nine years for the base offense with an additional ten years for the enhancement, based on findings that the crime involved planning and sophistication, that there was more than one participant, and that the victim was vulnerable. The court further found that the defendants testimony at trial was inherently not credible. The Court of Appeal reversed and remanded for resentencing, finding that the defendant had not waived his challenge under Blakely v. Washington (2004) 159 L.Ed.2d 403. The court rejected the argument that United States v. Cotton (2002) 535 U.S. 625 compelled a finding that the issue was waived, because that decision only applies where there is “overwhelming evidence” that the result would have been the same even if the defendant had interposed a timely objection. Further, the court found that the error was not waived under People v. Scott (1994) 9 Cal.4th 331, because a timely objection to a constitutional error that had not yet been recognized would not have furthered the goal of judicial economy. Finally, the court found that the Blakely error in this case was not harmless because the evidence was not so overwhelming that the court could find beyond a reasonable doubt that the outcome would have been the same had the aggravating factors been submitted to a jury.