P. v. Cahill

Filed 5/26/17 P. v. Cahill CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
STEPHEN THOMAS CAHILL,
Defendant and Appellant.
F071407
(Super. Ct. No. F13906055)
OPINION
THE COURT*
APPEAL from a judgment 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, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M.
Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Franson, J.

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2.
Stephen Cahill appeals from the denial of his petition for resentencing under Penal
Code section 1170.18 seeking modification of the sentence imposed on his prior
conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851). Cahill
contends his conviction under Vehicle Code section 10851 is eligible for resentencing
under Proposition 471 and that the denial of his request violates principles of equal
protection. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
On April 23, 2014, Cahill pled no contest to unlawful driving or taking of a
vehicle in violation of Vehicle Code section 10851, subdivision (a). He admitted a strike
prior and three prison priors. In exchange for his plea, a charge of receiving a stolen
motor vehicle (Pen. Code, § 496d, subd. (a)) was dismissed. Cahill was sentenced to
prison for four years, double the middle term due to the prior strike.3
Cahill’s arrest took place on June 4, 2013, when he was stopped by police while
driving a vehicle reported stolen approximately two weeks earlier. The vehicle belonged
to Serina R., who reported that she had parked her car in a Target parking lot to carpool
to work and when she returned her car was gone. Cahill stated he had gotten the vehicle
from a friend, whom he did not identify, but he assumed the vehicle was probably stolen.
1 We deny as unnecessary Cahill’s request for, inter alia, judicial notice of the
Proposition 47 ballot pamphlet filed October 26, 2015.
2 Because there was no jury trial, the statement of facts has been compiled from the
report of the probation officer.
3 Cahill was initially sentenced in conjunction with another conviction involving a
residential burglary. The sentence on the burglary was used as the principle 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.

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3.
On November 17, 2014, Cahill petitioned for resentencing under Proposition 47.
(Pen. Code, § 1170.18) On March 4, 2015, the trial court denied Cahill’s petition. This
appeal followed.
DISCUSSION
Cahill argues that, on its face, a violation of Vehicle Code section 10851 is a theft
offense subject to resentencing under Penal Code section 1170.18. He further argues that
treating a conviction for theft of an automobile under Vehicle Code section 10851 as a
felony while other similar property thefts are treated as misdemeanors under Penal Code
section 490.2 violates equal protection principles. We have previously addressed both
issues in People v. Sauceda (2016) 3 Cal.App.5th 635 (Sauceda), review granted
November 30, 2016, S237975.4 In Sauceda, we held that Vehicle Code section 10851 is
not affected by the changes enacted through Proposition 47 and that no equal protection
violation arises from the different potential punishments for, or the failure to grant
retroactive sentencing relied to, those convicted under Vehicle Code section 10851.
(Sauceda, supra, at pp. 644-650.) We see no reason to depart from those rulings here.
Because Vehicle Code section 10851 is not by its nature a theft offense, its exclusion
from Proposition 47 confirms there was no intent to modify the punishment scheme
separately set forth for the crime of unlawfully driving or taking a vehicle.
Related to these arguments, Cahill also contends that a conviction under Vehicle
Code section 10851 must be eligible for resentencing because it is a lesser included
offense to grand theft auto, which is eligible for resentencing when the value of the
vehicle is less than $950. We do not agree. As explained in Sauceda, a conviction under
Vehicle Code section 10851 does not require an explicit determination of intent to steal.
4 Effective July 1, 2016, California Rules of Court, rule 8.1115(e)(1) was amended
to provide that a published opinion of a Court of Appeal has no binding or precedential
effect once the matter is pending review in the Supreme Court and “may be cited for
potentially persuasive value only.”

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4.
(Sauceda, supra, 3 Cal.App.5th at pp. 644, 645.) Thus, evidence of theft is unnecessary
to satisfy the elements needed for conviction. The fact that, in some limited
circumstances, Vehicle Code section 10851 can serve as a lesser included offense to theft
of an automobile (whether grand or petty theft under Proposition 47), does not change the
fact that the ultimate conviction is not necessarily a theft offense. Because Vehicle Code
section 10851 is not by its nature a theft offense, its exclusion from Proposition 47
confirms there was no intent to modify the punishment scheme separately set forth for the
crime of unlawfully driving or taking a vehicle.
In any event, Cahill has presented no evidence to the trial court on the value of the
vehicle. (People v. Johnson (2016) 1 Cal.App.5th 953, 962-964.) The initial burden of
proof is upon Cahill to demonstrate he is eligible for relief. (People v. Sherow (2015)
239 Cal.App.4th 875, 880 [“We think it is entirely appropriate to allocate the initial
burden of proof to the petitioner to establish the facts upon which his or her eligibility is
based.”]; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449 [burden on petitioner
to show value of stolen property was less than $950].) This he failed to do.
DISPOSITION
The judgment is affirmed.

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