People v. McKinney CA3

Filed 12/22/25 P. v. McKinney CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou) ----

THE PEOPLE, C100636

Plaintiff and Respondent, (Super. Ct. No. SCCR-CRF-2020-586) v.

JEREMY DEE CHARLES MCKINNEY,

Defendant and Appellant.

After a jury convicted defendant Jeremy Dee Charles McKinney of corporal injury of a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)) and two misdemeanor offenses, the trial court sentenced him to the upper term of five years in prison.1 On appeal, McKinney contends that the court violated his rights under the Sixth Amendment and section 1170, subdivision (b) by imposing the upper term based on aggravating factors found true by the court, without obtaining a personal waiver of his right to a jury trial.

1 Undesignated statutory references are to the Penal Code.

1

He further contends that his five-year sentence was unauthorized because the record lacks an express finding that he suffered a prior conviction that would subject him to the aggravated penalty provision of section 273.5, subdivision (f)(1). The People concede, and we agree, that imposition of the upper term based on judge-found facts, without McKinney’s express waiver of his jury trial right, violated the Sixth Amendment. We also agree that the error was not harmless. As to McKinney’s section 273.5 argument, we conclude that any failure to make the necessary finding to trigger the aggravated penalty provision was harmless. McKinney will therefore remain subject to section 273.5, subdivision (f)(1) on resentencing. BACKGROUND A first amended consolidated information charged McKinney with corporal injury of a spouse or cohabitant (§ 273.5, subd. (a); count one), misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count two), and misdemeanor violation of a protective order (§ 166, subd. (c)(1); count three). As to count one, the information alleged that McKinney had suffered a conviction for corporal injury of a spouse or cohabitant within seven years of the offense, exposing him to the increased penalties provided in section 273.5, subdivision (f)(1). The information also pleaded three aggravating sentencing factors: that McKinney’s prior convictions were numerous and of increasing seriousness, that he had served a prior prison term, and that his prior performance on probation and parole was unsatisfactory. In February 2024, a jury convicted McKinney on all three counts. After receiving the jury’s verdicts, the trial court asked whether the adjudication of the aggravating factors and prior convictions would proceed by court trial. Defense counsel answered affirmatively, and counsel for both parties stipulated that the jury could be excused. The jury was excused, and a bench trial was held on the prior convictions and aggravating factors. The prosecution moved to admit a certified copy of McKinney’s rap sheet from the California Law Enforcement Telecommunications System.