People v. Distin CA2/3

Filed 7/16/21 P. v. Distin CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B304654

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA466019) v.

PHILIP C. DISTIN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Craig E. Veals, Judge. Reversed with directions. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

After Philip C. Distin pled no contest to various offenses and admitted a five-year prior under Penal Code1 section 667, subdivision (a), the trial court placed him on probation and imposed but suspended execution of sentence. Thereafter, the trial court revoked probation and executed the suspended sentence. In doing so, the trial court, believing that Distin’s case was final on appeal, found it lacked discretion to strike the five- year prior under a then-recently enacted ameliorative law. Distin appeals, contending that his case was not final on appeal and therefore the trial court did have discretion to strike the prior. While this matter was pending on appeal, our California Supreme Court decided People v. Esquivel (2021) 11 Cal.5th 671 (Esquivel), which held that cases such as Distin’s are not final on appeal for the purpose of applying an ameliorative law. Accordingly, we reverse the order. BACKGROUND In 2018, Distin pled no contest to carjacking (§ 215, subd. (a)) and second degree robbery (§ 211) and admitted he had a prior conviction within the meaning of the Three Strikes law, a five-year prior (§ 667, subd. (a)(1)), and four prior prison terms (§ 667.5, subd. (b)). On September 12, 2018, the trial court placed Distin on three years’ probation and imposed an 18-year sentence, execution suspended. That suspended sentence included a five-year term under section 667, subdivision (a) and four 1-year terms under section 667.5, subdivision (b).2