People v. McGraw CA2/6

Filed 9/16/25 P. v. McGraw CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B341305 (Super. Ct. No. MA049580) Plaintiff and Respondent, (Los Angeles County)

v.

CALVIN MCGRAW,

Defendant and Appellant.

Calvin McGraw appeals from the judgment following his resentencing. He contends the trial court imposed the upper term in violation of Penal Code1 section 1170, subdivision (b) (§ 1170(b)) and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi). Appellant further argues his “right to equal protection of the law requires [section 1172.75, subdivision (d)(4) (§ 1172.75(d)(4))], to be interpreted to not dispense with the proof requirement in section [1170(b)], in a resentencing hearing.” We will affirm.

1 Undesignated statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND In 2011, a jury convicted appellant of corporal injury to a cohabitant (§ 273.5, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). Appellant received an aggregate prison term of 22 years: a base term of four years (an upper term), doubled to eight, on count 1; three one-year prior prison term enhancements (§ 667.5, subd. (b)); a one-year deadly weapon enhancement (§ 12022, subd. (b)(1)); a five-year great bodily injury enhancement (§ 12022.7, subd. (e)); and a five-year serious felony enhancement (§ 667, subd. (a)(1)). The court stayed the sentence on count 2 pursuant to section 654. At a resentencing in 2023, the court struck appellant’s three prison prior enhancements and stayed the deadly weapon enhancement, which resulted in a new aggregate term of 18 years. Although the court cited section 1172.7 as the basis for striking the prison priors, section 1172.75 is the correct statute. On appeal from that resentencing, we reversed the judgment as to the imposition and stay of the deadly weapon enhancement. We remanded for resentencing with directions to either impose or strike the enhancement and otherwise affirmed. (People v. McGraw (Feb. 21, 2024, B330584) [nonpub. opn.].) On remand, the court struck the deadly weapon enhancement but did not otherwise alter the sentence. DISCUSSION Appellant contends imposition of the upper term in his case violated section 1170(b) and Apprendi, supra, 530 U.S. 466. Given section 1172.75(d)(4)’s exception, we disagree. We further conclude that exception does not violate appellant’s equal protection rights.