A court may impose an upper-term sentence only where the facts supporting that term have been found true by a jury. The court here found that the argument under Blakely v. Washington (2004) 124 S.Ct. 2531 was not knowingly or intelligently waived because Blakely was not decided until after the defendant was sentenced, and defense counsel had filed a statement in mitigation and urged the court to impose a lower term. Relying on its own recent precedent, Division One of the Fourth Appellate District reaffirmed that Blakely applies to California’s determinate sentencing scheme, and further held that the error cannot be harmless because it involves a defendant’s constitutional right to a jury trial.