Scott

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] OPINION

B. Remanded For Resentencing Defendant further contends the trial court violated his Sixth Amendment right to a jury trial in sentencing him to the aggravated term of three years without taking an on-the-record waiver of his right to a jury trial on the factors in aggravation. 6 ( Blakely v. Washington (2004) 542 U.S. 296 [ 124 S.Ct. 2531 , 159 L.Ed.2d 403 ]; Boykin v. Alabama (1969) 395 U.S. 238 [ 89 S. Ct. 1709 , 23 L.Ed.2d 274 ]; In re Tahl (1969) 1 Cal.3d 122 ; see also People v. Gurule (2002) 28 Cal.4th 557 , 633-634 .) Because no waiver was taken, he argues the matter must be remanded for resentencing. Alternatively, he requests that this court reduce his sentence to the middle term of two years. We remand the matter for resentencing. In Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. ___ [ 2007 D.A.R. 1003 ], the Supreme Court just held that the imposition of an upper term sentence under California's determinate sentencing law (DSL), based solely on a judge's factual findings, violates a defendant's Sixth and Fourteenth…