Opinion
F071407
05-22-2018
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN THOMAS CAHILL, Defendant and Appellant.
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F13906055)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. James A. Kelley, Judge. Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
This case is before us for a second time, after the California Supreme Court transferred it back to this court with directions to reconsider in light of the recent opinion in People v. Page (2017) 3 Cal.5th 1175 (Page). At issue is whether the trial court erred when it denied defendant Stephen Cahill's petition to redesignate his conviction for unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) as a misdemeanor. We affirm the order.
BACKGROUND
Vehicle Code Section 10851 Conviction
In April 2014, appellant Stephen Cahill pled no contest to a felony violation of Vehicle Code section 10851, subdivision (a). He also admitted he had served three prior prison terms (Pen. Code, § 667.5) and had suffered a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i); 1170.12.) The trial court sentenced him to prison for four years.
Cahill was initially sentenced in conjunction with another conviction involving a residential burglary. The sentence on the burglary was used as the principal term and Cahill was sentenced to one year, four months on the instant case. Pursuant to a Proposition 47 request not at issue here, his burglary conviction was reduced to a misdemeanor. Cahill was then resentenced for the instant conviction to a four-year term. --------
As to count 1, the complaint alleged Cahill "did unlawfully drive and take a certain vehicle then and there the personal property of Serina Marie Robledo without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle," in violation of Vehicle Code section 10851, subdivision (a). While there was no jury trial, as Cahill pled no contest, the parties stipulated that the police reports revealed a factual basis for the plea. The probation officer's summary of the facts was obtained from the police report to which the parties stipulated. The report explained that the owner of the vehicle in question reported her car stolen on May 22, 2013. But it was not until June 4, 2013, that Cahill was pulled over while driving that stolen vehicle. Cahill denied stealing the vehicle, stating he got it from a friend. When asked if he knew it was stolen, Cahill stated he "kinda figured" so. Petition for Redesignation as a Misdemeanor
In 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (Page, supra, 3 Cal.5th at p. 1179.) Proposition 47 "reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies." (Page, supra, at p. 1179.) As relevant here, Proposition 47 added Penal Code section 490.2, which provides that "obtaining any property by theft," when the value of the property taken is $950 or less, is petty theft and shall generally be punished as a misdemeanor. (Pen. Code, § 490.2, subd. (a).) In addition, Proposition 47 added Penal Code section 1170.18, which permits a defendant to petition to have his or her felony conviction resentenced to or redesignated a misdemeanor. (Pen. Code, § 1170.18, subds. (a), (b), (f) & (g); People v. Gonzales (2017) 2 Cal.5th 858, 863.)
On November 17, 2014, Cahill petitioned for redesignation of his Vehicle Code section 10851 conviction. Cahill alleged he was currently serving a term in state prison for, inter alia, the Vehicle Code section 10851 conviction. On March 4, 2015, following an in chambers discussion and hearing, the trial court denied Cahill's petition.
DISCUSSION
Cahill contends the trial court erred when it denied his petition to redesignate his Vehicle Code section 10851 conviction.
The California Supreme Court held that a defendant who has been convicted of Vehicle Code section 10851 may be resentenced to a misdemeanor "if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle." (Page, supra, 3 Cal.5th at p. 1187; see id. at pp. 1184-1185 [similar eligibility criteria for resentencing and for redesignation after the sentence has been completed].) The court explained that a defendant who has been convicted of grand theft is "clearly eligible" for resentencing under Penal Code section 1170.18 if the value of the property taken was $950 or less. (Page, supra, at p. 1182; see Pen. Code, § 490.2, subd. (a).) The court observed that "while Vehicle Code section 10851 does not expressly designate the offense as theft, the conduct it criminalizes includes theft of a vehicle .... And to the extent vehicle theft is punished as a felony under [Vehicle Code] section 10851, it is, in effect, a form of grand, rather than petty, theft. [Citations.]" (Page, supra, at pp. 1186-1187.)
The Page court stated that "Vehicle Code section 10851 may be violated in several ways," but that only a certain type of violation of that section constitutes theft of a vehicle. (Page, supra, 3 Cal.5th at p. 1180.) The court explained: "Theft ... requires a taking with intent to steal the property—that is, the intent to permanently deprive the owner of its possession." (Id. at p. 1182.) "'Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under [Vehicle Code] section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction .... On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete.... Therefore, a conviction under [Vehicle Code] section 10851(a) for posttheft driving is not a theft conviction ....' [Citation.] The same is true when a defendant acted with intent only to deprive the owner temporarily of possession. Regardless of whether the defendant drove or took the vehicle, he did not commit auto theft if he lacked the intent to steal. But if the defendant was convicted under Vehicle Code section 10851, subdivision (a), of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession, he has, in fact, 'suffered a theft conviction.' [Citation.]" (Id. at p. 1183.)
The Page court further explained: "To establish eligibility for resentencing [or redesignation] on a theory that a Vehicle Code section 10851 conviction was based on theft, a defendant must show not only that the vehicle he or she was convicted of taking or driving was worth $950 or less [citation], but also that the conviction was based on theft of the vehicle rather than on posttheft driving [citation] or on a taking without the intent to permanently deprive the owner of possession [citation]." (Page, supra, 3 Cal.5th at p. 1188.)
"[A] petitioner for resentencing [or redesignation] under Proposition 47 must establish his or her eligibility ...." (People v. Sherow (2015) 239 Cal.App.4th 875, 878-880.)
Here, the trial court denied the petition without stating the reason - presumably because it found Cahill's conviction under Vehicle Code section 10851 categorically ineligible for Proposition 47 resentencing. While this was an incorrect assumption on the part of the trial court, Cahill made no showing that his conviction was based on the theft of the vehicle rather than posttheft driving or that the value of the vehicle was less than $950. Accordingly, the trial court properly denied the petition.
DISPOSITION
The order is affirmed without prejudice to consideration of a subsequent petition that supplies evidence of Cahill's eligibility for redesignation of his Vehicle Code section 10851 conviction.