Appellant argued that the imposition of the upper term was unlawful because the aggravating factors relied upon, including appellant’s recidivism, were not found by a jury, in violation of Blakely v. Washington (2004) 542 U.S. ____. The appellate court here rejected the argument and affirmed. A defendant with a conviction for which there is a tripartite sentence understands the maximum sentence he is exposed to at the outset of the proceedings. Facts relevant to the defendant or the offense may be used in sentencing without implicating the right to a jury because they do not result in a sentence beyond the statutory maximum or the maximum established by the plea. They do not become elements of a new offense. This statutory structure meets the requirements of Apprendi, Harris, and Blakely. J. McDonald dissented, finding that the statutory maximum is, by Blakely’s definition, the middle term.