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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for
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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
1
All further undesignated statutory references are to the
Penal Code.
2
The trial court struck the prior strike.
2
Thereafter, Distin was charged with a new offense, and the
trial court found that he violated the terms of probation and
revoked probation. On December 23, 2019, the trial court struck
the four 1-year prison priors but found it had no discretion to
strike the five-year prior under a recently enacted ameliorative
law. It then imposed the previously suspended sentence for a
total of 14 years in prison.
DISCUSSION
When Distin was sentenced to probation in 2018, trial
courts had no discretion to strike five-year priors. (Former § 667,
subd. (a).) Thereafter, the Legislature, per Senate Bill No. 1393
(Senate Bill 1393) (Stats. 2018, ch. 1013, §§ 1–2), amended
sections 667, subdivision (a), and 1385, subdivision (b), to give
trial courts discretion to strike those priors. (See generally
People v. Garcia (2020) 28 Cal.App.5th 961, 971.) Senate Bill
1393 took effect January 1, 2019 (Garcia, at p. 971), while Distin
was still on probation. While the general rule is statutes are
presumed to operate prospectively, the exception to the rule is
that when the Legislature amends a statute to reduce the
punishment for an offense, we will assume in the absence of
evidence to the contrary that the amended statute applies to
judgments not final on the statute’s operative date. (In re
Estrada (1965) 63 Cal.2d 740 (Estrada).) There is no dispute that
Senate Bill 1393 applies retroactively to cases not final on appeal
when it took effect.
The dispute instead concerns whether Distin’s case was
final on appeal when Senate Bill 1393 took effect. Distin
contends his case was still pending when the law took effect,
while the People contend that the case became final 60 days after
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September 2018, when the trial court placed Distin on probation,
as he did not then appeal.
Esquivel, supra, 11 Cal.5th 671, has resolved the dispute in
Distin’s favor. The defendant in Esquivel had pled no contest to a
felony and admitted two prior prison terms. (Id.at p. 673.) The
trial court imposed sentence but suspended its execution and
placed the defendant on probation. (Ibid.) The defendant did not
appeal, and, several years later, the trial court found that he had
violated probation, so it ordered the sentence into effect. (Ibid.)
The defendant then appealed, and, during the pendency of the
appeal, Senate Bill No. 136 became effective; hence, if that new
law applied to the defendant, it would reduce his sentence.
To determine whether the defendant could avail himself of
that new law, Esquivel counseled against importing a rigid
understanding of the term “final” for the purpose of Estrada
retroactivity. (Esquivel, supra, 11 Cal.5th at p. 677.) Based on a
broader understanding of what finality of a case and prosecution
of a case mean, Esquivel, at page 677, noted that it had recently
found, in People v. McKenzie (2020) 9 Cal.5th 40, 43, that, where
imposition of sentence has been suspended, the judgment is not
final for the purpose of Estrada retroactivity. Thus, a defendant
who is placed on probation after imposition of sentence is
suspended, and who does not timely appeal from the order
granting probation, may take advantage of an ameliorative
statutory amendment that takes effect during a later appeal from
a judgment revoking probation and imposing sentence.
(McKenzie, at p. 46.) Esquivel found that this conclusion applied
with equal force to the probation situation before it, where
sentence is imposed, and its execution suspended. (Esquivel, at
pp. 678, 680.) Because the criminal proceeding against the
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defendant in Esquivel was not complete when Senate Bill No. 136
took effect, he was entitled to seek relief under that new law.
(See also People v. Chavez (2018) 4 Cal.5th 771, 781 [where court
suspends execution of sentence, sentence is a provisional or
conditional judgment].)
Like the defendant in Esquivel, Distin was still on
probation when Senate Bill 1393 became effective. Execution of
his sentence had been suspended, so the judgment was merely
provisional or conditional. As such, Distin’s case was not final for
the purposes of Estrada retroactivity. Therefore, when the trial
court revoked probation and was considering what sentence to
then impose, the trial court had discretion to strike the five-year
prior under Senate Bill 1393.
Accordingly, the matter must be remanded, and the
procedure described in People v. Stamps (2020) 9 Cal.5th 685,
707, followed. On remand, Distin must be given the opportunity
to seek relief under Senate Bill 1393. If the trial court exercises
its discretion to strike the five-year prior, then the prosecution
may either agree to the modified sentence or withdraw from the
plea agreement. Also, if the trial court exercises its discretion to
strike the five-year prior, then the trial court may withdraw its
approval of the agreement.
Should the trial court not exercise its discretion to strike
the five-year prior, it shall correct the following sentencing error
and errors in the abstract of judgment. First, the trial court
imposed but stayed a high term sentence of “six years” on the
second-degree robbery conviction. However, the high term for
that crime is five years. (§ 213, subd. (a)(2).) The sentence
imposed therefore is unauthorized and must be corrected, as
must the abstract of judgment. Second, the trial court stayed the
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sentence on count 2, but the abstract of judgment incorrectly
states it was imposed concurrently. Third, Distin suffered one
prior serious felony enhancement, not two, as the abstract of
judgment incorrectly states.
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DISPOSITION
The order is reversed with the direction to the trial court to
allow Distin an opportunity to seek relief under Senate Bill 1393.
If the trial court elects not to exercise its discretion to strike the
five-year prior, then the trial court shall impose five years on the
second-degree robbery conviction and correct the abstract of
judgment accordingly. The trial court also shall correct the
abstract of judgment to show that the sentence on count 2 was
stayed and that Distin suffered only one prior serious felony
enhancement. The trial court shall forward the corrected
abstract of judgment to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
THOMAS, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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