In this probation violation case involving claimed Blakely error, the appellate court rejected the prosecution’s theory that the issue was waived for failure to object and forfeiture or that appellant waived his jury trial rights to sentencing issues when he waived his right to a jury trial or probation revocation hearing. An objection would have been futile as Cunningham v. California (2007) 549 U.S.__ [166 L.Ed.2d 856] was not yet the applicable law (People v. Welch (1993) 5 Cal.4th 228) and a waiver must be knowing and intelligent (People v. Collins (2001) 26 Cal.4th 297). The trial court here imposed the upper term on its finding of numerous prior convictions of increasing seriousness, appellant being on probation when offense committed, and appellant’s admitted probation violation conceding poor probation adjustment. As to the first factor, the appellate court found that a determination that convictions are numerous or of increasing seriousness does not require a factual determination by a jury. [Appellant’s record reflected a gradation of offenses from misdemeanors to felonies.] As to the second factor, the court found that because appellant admitted the poor probation adjustment, there was no Blakely error. Finally, even if the fact that appellant was on probation was a matter to be decided by the jury, because review is under the harmless-beyond-a-reasonable-doubt standard, any error resulting from the improper use of this factor would be harmless.