People v. McGraw CA2/6

Filed 2/21/24 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B330584 (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 erred by staying a one- year deadly weapon enhancement on a domestic violence conviction rather than dismissing or striking it under Penal Code section 1385, subdivision (a).1 Appellant also contends the court erred when it denied his request to dismiss one of two five-year

1 Unless otherwise noted, all statutory references are to the

Penal Code.

terms for great bodily injury and serious felony enhancements under section 1385, subdivision (c)(2)(B). We agree in part with the first contention and will remand with directions to either impose or strike the deadly weapon enhancement. We will otherwise affirm the judgment. FACTS AND PROCEDURAL HISTORY Appellant beat his longtime girlfriend with a chair during an argument in 2010. A jury convicted him of corporal injury to a cohabitant. (§ 273.5, subd. (a)). Appellant received an aggregate prison term of 22 years: a base term of four years, doubled, on the corporal injury charge; 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)).2 He began serving his sentence in 2011. In 2022, the California Department of Corrections and Rehabilitation (CDCR) recommended recalling appellant’s sentence and resentencing him pursuant to sections 1172.7, subdivision (a) and 1172.75, subdivision (a). The trial court struck the three one-year prior prison term enhancements as legally invalid under section 1172.7.3 It denied appellant’s request to strike the remaining enhancements under section 1385, subdivision (c), but agreed to stay the one-year deadly