Sentencing challenges premised on Blakely are not forfeited on appeal by counsel’s failure to object at trial when a sentencing proceeding occurred after Black I but before Cunningham. Black I was binding on the lower courts until it was overruled by Cunningham. At that time, it would have been futile to request a jury trial on aggravating factors. Appellant’s Sixth Amendment rights were violated because none of the aggravating factors relied on by the trial court were established by the jury’s verdict or fell within the Blakely exceptions. The trial court’s reasons for imposing the upper term were that the crimes involved great violence; the victims were particularly vulnerable; the defendant engage in callous behavior; and her actions showed planning and premeditation. None of these facts were admitted by appellant or established by the jurys verdict. Further, appellant had no prior criminal convictions. Cunningham error is reviewed under Chapman’s harmless error analysis, as applied in Neder. And yet, there are some differences in application of this standard when the error is trial error and when it is Cunningham error. In the present context, it cannot be assumed that the record reflects all the evidence which could have been presented because the aggravating factors were neither charged nor directly at issue at trial, and they were subject to a lesser standard of proof. So defense counsel would not necessarily have had reason or opportunity to challenge the evidence supporting the factors, or counsel may have used a different strategy. Also, since aggravating factors are framed broadly, it would be hard for a reviewing court to conclude with confidence that a jury would have assessed the facts the same way the trial court did. But, if a reviewing court finds, beyond a reasonable doubt, that the jurors would have found at least one single aggravating factor true beyond a reasonable doubt had it been submitted to them, Cunningham error may be found harmless. In this case, the error was not harmless beyond a reasonable doubt. The court’s findings regarding callousness entail findings about appellant’s state of mind and that was a hotly contested issue at trial. Likewise, the finding of victim vulnerability was not so clear-cut as would have been the case if the victims had been elderly, very young, or disabled. The courts findings on the crime involving great violence is a closer question (this is a manslaughter and attempted murder case), but the jury reasonably could have concluded the factor did not apply to appellant because the crimes involved great violence on the part of others, but not necessarily on defendant’s part. Cases requiring remand shall be conducted in a manner consistent with the Legislature’s amendments to the DSL. Upon remand, the judge has full discretion to impose the lower, middle, or upper term. Now, the trial court must state reasons for its decision (even if it imposes the middle term), but it need not cite “facts” that support its decision, nor weigh aggravating and mitigating factors. Although this holding might be characterized as a limited reformation of the statute, it is appropriate in order to make the statute more consistent with the intent of the Legislature that originally enacted the DSL. Application of the new sentencing process does not violate ex post facto principles because this is application of a judicial decision, not of a statutory enactment. Plus, appellant is not being subjected to a longer sentence than the one she already received. Nor is due process offended because appellant had notice of the sentencing range applicable for the crimes committed.