P. v. Cagnolatti
Filed 8/20/12 P. v. Cagnolatti CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DELANO
CAGNOLATTI,
Defendant and Appellant.
D059751
(Super. Ct.
No. RIF142762)
APPEAL from
a judgment of the Superior Court
of
County, Harry A. Staley, Judge. Affirmed in part and reversed in part.
A jury
convicted defendant Delano Cagnolatti of eight counts of
the age of 14 (Pen. Code, § 269, subd. (a)),
two counts of providing or transporting a child under the age of 16 for a lewd
act (§ 266j), and one count of being a sex offender and not registering an
address change (§ 290.013, count 11).
The information charged a count of not registering under section 290.013
(count 12). However, during trial, the
court granted a prosecution motion to dismiss count 12. In a bifurcated
proceeding, the court found true the allegations that Cagnolatti had
suffered numerous prior strike convictions (§§ 667, subds. (c) &
(e)(2)(A); 1170.12, subd. (c)(2)), one of which was a conviction for forcible
oral copulation within the meaning of section 667.71. The court sentenced Cagnolatti to a total
indeterminate prison term of 485 years to life.
On appeal,
Cagnolatti argues the court abused its discretion by denying his motion to
sever trial on counts 11 and 12 from the remaining counts. He also challenges the sentence imposed on
count 11.
I
FACTS
A. Prosecution Evidence
The Molestations
The victims, Does 1 and 2, are
Cagnolatti's nieces through his marriage to their great aunt, P.
Cagnolatti. Doe 1 was born in April
1997, and Doe 2 was born in May 1996.
Cagnolatti first molested Doe 1
around 2005. He touched her
"private parts" with his hand and also put his "private
part" in her vagina, which hurt her and made her cry. The first time it happened was in his truck,
and he also molested her at a house. He
also tried to force her to touch his penis with her hand but she pulled
away. He told Doe 1 that he had a gun
and would kill her and her family if she told anyone. He also told her that, if she told anyone, he
would get in trouble and she was afraid she would not be allowed to see him
anymore.
Cagnolatti
first molested Doe 2 when she was eight years old and continued to molest her
until she was 11 years old. The sexual
acts included rape and oral copulation, and occurred more than 10 times when
she was nine years old and more than 10 times when she was 10 years old. Although Doe 2 first testified she did not
recall any threats, she later testified he threatened to kill her if she told
anyone. On one occasion, he slapped her when
she refused to orally copulate him.
Cagnolatti took Does 1 and 2 on a number
of trips with him in his truck. The
first time he took the girls on a trip nothing untoward occurred. However, on later trips to places including Bakersfield
and Fresno, Cagnolatti molested
Does 1 and 2. During some of those
trips, Cagnolatti also brought other men to Doe 2, and these other men molested
her. The other men gave money to
Cagnolatti.
In March 2008 Doe 2 first learned
Cagnolatti had molested Doe 1. Doe 2
then told Doe 1 Cagnolatti had done the same to her. They told their grandmother, and she called
the Sheriff's Department. She also
investigated Cagnolatti's name on the Internet and learned he was a registered
sex offender.
San Bernardino County Deputy
Sheriff Sodaro took the initial report on March 12, 2008. The
sisters told Deputy Sodaro about the molestations and about Cagnolatti's
threats if they told anyone. One week
later, investigators went to the house at which Cagnolatti was registered.
returned to the address frequently but never found anyone there. Cagnolatti did not change his registration
address between August 2007 and June 2008.
On May 14, 2008, authorities found Cagnolatti in Texas. When they stopped him, he identified himself
as Cleve Benson and gave the arresting officers items of identification for
Cleve Benson. However, the officers had
his photograph, believed him to be Delano Cagnolatti, and arrested him.
B. Defense
Evidence
Cagnolatti's wife, the great aunt of
Does 1 and 2, testified she and Cagnolatti lived at the Moreno
Valley address (at which he had
registered) until June 2008. The house
went into foreclosure and they were unsuccessful at trying to work with the
bank to prevent foreclosure. Cagnolatti
was in Texas trying to get
trucking work starting around February 2008 but he was still living at the Moreno
Valley address during February and
March 2008. Cagnolatti told his wife
that Doe 1 stole from him. Brian P.,
Does 1 and 2's uncle, had custody of the girls at various times from 2003 or
2004 to 2006, and also had custody of Doe 1 for two months in 2010. During the latter period of custody, Doe 1
constantly stole things and lied to him.
He finally called the Sheriff to take her away.
A CPS investigator interviewed Does
1 and 2 in 2004 and neither mentioned any inappropriate touchings by
Cagnolatti. The parties stipulated a
social worker would testify she interviewed the girls in 2005 and both denied
Cagnolatti inappropriately touched them.
However, when she again interviewed them in 2008, they told her of the
inappropriate conduct.
II
ANALYSIS
Prior to
trial, Cagnolatti moved to sever trial of counts 1 through 10 from the
failure-to-register counts 11 and 12. He
argued (1) they were improperly joined and (2) even if properly joined, the
charges should be tried separately because of the prejudicial effect trial of
the failure-to-register counts would have on the remaining counts.
Cagnolatti's conduct of leaving the state without registering the move was
admissible because relevant to show consciousness of guilt of the remaining
counts.
A. General Principles
Section 954
provides in relevant part: "An accusatory pleading may charge two or more
different offenses connected together in their commission, or different
statements of the same offense or two or more different offenses of the same
class of crimes or offenses, under separate
counts . . . ."
The law favors consolidation of charges.
(People v. Ochoa (1998) 19
Cal.4th 353, 409.) "Joinder of
criminal charges for trial benefits the public by reducing delay in the
disposition of criminal charges, and it benefits the state by conserving
judicial resources and public funds."
(People v. Hill (1995) 34 Cal.App.4th
727, 735.) Whether offenses are joinable
under section 954 is a question of law we review de novo. (People
v. Cunningham (2001) 25 Cal.4th 926, 984.)
However, " '[t]he
determination that the offenses are "joinable" under section 954 is
only the first stage of analysis because section 954 explicitly gives the trial
court discretion to sever
offenses or counts "in the
interest of justice and for good cause shown." ' " (People
v. Lucky (1988) 45 Cal.3d 259, 276-277.)
A defendant must make a showing of good cause to obtain severance (People v. Maury (2003) 30 Cal.4th 342, 392), and it is the
defendant's burden to demonstrate substantial prejudice would arise were the
charges not separately tried. (
1229, 1315.) Although the determination
of prejudice is necessarily dependent on the facts of each case, several
guiding factors have emerged: " 'Refusal to sever may be an abuse of
discretion where: (1) evidence on the crimes to be jointly tried would not be
cross-admissible in separate trials; (2) certain of the charges are unusually
likely to inflame the jury against the defendant; (3) a "weak" case
has been joined with a "strong" case, or with another
"weak" case, so that the "spillover" effect of aggregate
evidence on several charges might well alter the outcome of some or all of the
charges; and (4) any one of the charges carries the death penalty or joinder of
them turns the matter into a capital case.' " (Ibid.; accord, People v. Marshall (1997) 15 Cal.4th 1, 27-28.)
B. The
Counts Were Properly Joined
counts were not of the same class, the counts were properly joined under
section 954 because there was sufficient linkage in their commission. The
phrase "connected together in their commission" as used in section
954: "[O]ffenses which are committed at different times and places against
different victims are nevertheless 'connected together in their commission'
when they are . . . linked by a ' "common element of
substantial importance." ' " (People
v. Lucky, supra, 45 Cal.3d at p. 276; accord, People v. Mendoza (2000) 24 Cal.4th 130, 160.) If the offenses are so connected, joinder is
permissible even though the offenses do not relate to the same transaction and
may have been committed at different times and places against different
victims. (Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722.)
Our Supreme Court illustrated the application of
this standard in People v. Alvarez
(1996) 14 Cal.4th 155, 188. In
court's joinder of rape and vehicle theft counts survived de novo scrutiny
where "the rape occurred very close in time and place to the theft of the
vehicle, and the theft of the vehicle may have been motivated by a desire to
avoid apprehension for the rape." (Ibid.) More significantly, in People v. Valdez (2004) 32 Cal.4th 73, 119, our Supreme Court
subsequently held that a murder charge and an escape charge shared a common
element of substantial importance even though the murder occurred two years
before the escape charge. The court
concluded the escape, which occurred as the defendant was being returned to
"lock-up" following his murder charge arraignment, was nevertheless
connected and therefore properly joined because "[t]he apparent motive for
the escape was to avoid prosecution for the murder." (Ibid.) The court in People v. De La Plane (1979) 88 Cal.App.3d 223, 251 (disapproved on
other grounds by People v. Green
(1980) 27 Cal.3d 1, 39, fn. 25) likewise held it was proper to join one count
(a robbery charge) with another crime (murder) that occurred 10 months later
than the first count, reasoning the offenses were arguably connected to the
extent that the murder victim was originally charged as a codefendant on the
robbery charge, and the victim's cooperation with the prosecution provided a
motive for the murder.
On the basis of this authority, we
conclude the charges involving Does 1 and 2 and the failure-to-register charges
were properly joined under section 954.
The failure-to-register offense shared a common element of substantial
importance with the other charges because Cagnolatti apparently left the state
at or around the same time the instant molestations came to the attention of
authorities. As the trial court observed
when denying the motion to sever, a trier of fact could infer a consciousness
of guilt from Cagnolatti's conduct.
Because a trier of fact could infer (to paraphrase People v. Valdez, supra,
32 Cal.4th at p. 119) that "[t]he apparent motive for [Cagnolatti's
flight] was to avoid prosecution for [the sex crimes]" (
substantial importance permitting joinder of the charges.
v. Alvarez, supra, 14 Cal.4th at p. 188 [proper to join theft of vehicle
charge to rape charge where theft may have been motivated by a desire to avoid
apprehension for the rape, even though defendant contends possible linkage by
motive was speculative because "[while] there was no direct evidence [of
motive] [t]here was . . . sufficient circumstantial evidence to
support what the superior court rightly considered a 'fair
inference' "].)
C. Denial
of the Motion to Sever Was Not an Abuse of Discretion
determination that joinder of the counts in the information satisfied the
requirements of section 954 does not end our inquiry: " 'The
determination that the offenses are "joinable" under section 954 is
only the first stage of analysis because section 954 explicitly gives the trial
court discretion to sever
offenses or counts
"in the interest of justice and for good cause
shown." ' " (
276-277.) Cagnolatti had the burden of demonstrating
substantial prejudice requiring the charges be separately tried. (People
v. Bradford, supra, 15 Cal.4th at p. 1315.)
Although the determination of prejudice is necessarily dependent on the
facts of each case, several guiding factors have emerged: " 'Refusal
to sever may be an abuse of discretion where: (1) evidence on the crimes to be
jointly tried would not be cross-admissible in separate trials; (2) certain of
the charges are unusually likely to inflame the jury against the defendant; (3)
a "weak" case has been joined with a "strong" case, or with
another "weak" case, so that the "spillover" effect of
aggregate evidence on several charges might well alter the outcome of some or
all of the charges; and (4) any one of the charges carries the death penalty or
joinder of them turns the matter into a capital case.' " (Ibid.)
Cagnolatti does not carry his burden of showing the court's ruling was an abuse
of discretion. In determining whether a
trial court abused its discretion by refusing to sever charges, reviewing courts
first consider the cross-admissibility
of the evidence in hypothetical separate trials. (People
v. Soper (2009) 45 Cal.4th 759, 774.)
"If the evidence underlying the charges in question would be
to dispel
any suggestion of prejudice
and to justify a trial court's refusal to sever properly joined
charges." (Id. at pp. 774-775.) Even were the evidence not
cross-admissible,
that circumstance would not by itself establish prejudice or an abuse of
discretion. (Id. at p. 775; see also § 954.1.)
Here, the
evidence would have been cross-admissible because Cagnolatti tried to secret
himself around the time police learned of his molestations of the victims, and
therefore the evidence that he left without registering his new address would
have been admissible to show consciousness of guilt. Cagnolatti argues his departure for Texas
(and his attempt to avoid being identified when authorities in Texas found him)
would have sufficed to show "flight," and therefore his failure to
register was of minimal additional probative value while being highly
prejudicial, and therefore he contends his failure to register would not have
been cross-admissible because it would have been excluded under Evidence Code
section 352. However, the inference of a
consciousness of guilt from the fact Cagnolatti left California was arguably
knowingly risked additional
violating section 290.013) by leaving without satisfying his obligation to
register his address change. Because the
fact Cagnolatti violated section 290.013 by leaving California was not purely
duplicative of the evidence of the fact
he left California, the former would have been cross-admissible in a separate
trial of the counts involving Does 1 and 2.
Because the evidence would have
been cross-admissible at a separate trial, any suggestion of prejudice was dispelled and the trial
court's refusal to sever properly joined charges was justified. (People
v. Soper, supra, 45 Cal.4th at pp. 773-775.)
D. The
Sentence on Count 11 Must Be Modified
On appeal, Cagnolatti asserts the
consecutive 75-year-to-life term imposed on count 11 was unauthorized because
it was premised on the mistaken understanding that an enhancing allegation
under section 667.71 was appended to count 11.
The People concede no enhancing allegation under section 667.71 was
appended to count 11 and therefore the sentence on count 11 was
unauthorized. We agree the sentence was
unauthorized, and we therefore vacate the sentence as to count 11 and remand
for resentencing on count 11.
DISPOSITION
The
judgment is reversed to the extent it imposed a consecutive
75-year-to-life term on count 11 and, on remand, the
court shall resentence Cagnolatti as to count 11. In all other respects, the judgment is
affirmed.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
name="_ftn1" title="">[1] All further statutory references are to
the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] Cagnolatti was a
truck driver. His truck had a sleeping
compartment, which contained a bed, behind the cab of the truck.
