People v. Evans
IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Ct.App. 1/1 A107822
BLAINE ALLEN EVANS,
San Mateo County
Defendant and Appellant.
Super. Ct. No. SC056254
California law requires that in a criminal case a trial court must, before
imposing sentence, ask the defendant whether there is “any legal cause to show
why judgment should not be pronounced against him.” (Pen. Code, § 1200.)1
This inquiry is called the “allocution.”2 At issue is whether, in response to the
allocution, the defendant has the right to make an unsworn personal statement in
mitigation of punishment. Here, the Court of Appeal held that a criminal
defendant has no such right, expressly disagreeing with In re Shannon B. (1994)
Unless otherwise stated, all statutory citations are to the Penal Code.
In legal parlance, the term “allocution” has traditionally meant the trial
court’s inquiry of a defendant as to whether there is any reason why judgment
should not be pronounced. (People v. Cross (1963) 213 Cal.App.2d 678, 681;
Barrett, Allocution (1944) 9 Mo. L.Rev. 115, 115-116; Black’s Law Dict. (5th ed.
1979) p. 70.) In recent years, however, the word “allocution” has often been used
for a mitigating statement made by a defendant in response to the court’s inquiry.
(Black’s Law Dict. (8th ed. 2004) p. 83.) Here, we apply the term’s traditional
22 Cal.App.4th 1235 (Shannon B.), in which a different Court of Appeal reached a
contrary conclusion. We conclude that California law gives a defendant the right
to make a personal statement in mitigation of punishment but only while under
oath and subject to cross-examination by the prosecutor.
A jury convicted defendant Blaine Allen Evans of receiving stolen
property, a felony. The trial court found that defendant had been convicted of five
felonies for which he had served prior prison terms (§ 667.5, subd. (b)) and that he
had previously been convicted of a serious or violent felony constituting a “strike”
(§ 1170.12, subd. (c)(1)).
On August 20, 2004, the day set for sentencing, the trial court asked
whether there was “any legal cause why sentence cannot now be pronounced.”
Defense counsel replied, “No legal cause.” The court then asked defense counsel
if he would like “to make any comments.” Defense counsel responded that the
offense was attributable to defendant’s drug addiction, and that the trial court
should give defendant “one more chance” by placing him on probation and
ordering placement at a residential drug treatment program. The prosecutor
replied that it was “too late” for probation because of defendant’s substantial
criminal record and his failure to take advantage of previous opportunities to
attend drug programs, and that defendant “simply has not earned a right to get
probation.” After a brief discussion of whether the court should order restitution
to the victim, the trial court asked, “With that, the matter’s submitted, correct?”
Defense counsel replied, “Submitted.”
The trial court then agreed with the prosecutor that defendant did not
“deserve the opportunity” for probation, because two years earlier defendant had
been placed in another drug program but had “walked off that program,” and he
ultimately was sentenced to 16 months in prison. The court formally denied
defendant’s request for probation, found no good cause to dismiss defendant’s
prior “strike,” and ordered defendant “committed to the Department of
Corrections.” At this point, defendant interjected: “Can I speak, your honor?”
The trial court replied, “No.” It then imposed a five-year prison sentence.
On appeal, defendant argued that when the trial court at the sentencing
hearing denied his request to speak, it violated his right to make a personal
statement in mitigation of punishment. The Court of Appeal disagreed. Its
published opinion held that a criminal defendant does not have such a right,
disagreeing with Shannon B., a 1994 decision by a different Court of Appeal,
which held that section 1200 gives criminal defendants “a right . . . to make
personal statements in their own behalf and present information in mitigation of
punishment.” (Shannon B., supra, 22 Cal.App.4th at p. 1238.) The Court of
Appeal here relied on two older decisions, People v. Cross, supra, 213 Cal.App.2d
678, 682, and People v. Sanchez (1977) 72 Cal.App.3d 356, 359. We granted
review to resolve the conflict.
Section 1200 provides: “When the defendant appears for judgment he must
be informed by the court, or by the clerk, under its direction, of the nature of the
charge against him and of his plea, and the verdict, if any thereon, and must be
asked whether he has any legal cause to show why judgment should not be
pronounced against him.” (Italics added.) Section 1201 states: “He or she may
show, for cause against the judgment: [¶] (a) That he or she is insane; and if, in
the opinion of the court, there is reasonable ground for believing him or her
insane, the question of insanity shall be tried . . . [¶] (b) That he or she has good
cause to offer, either in arrest of judgment or for a new trial; in which case the
court may, in its discretion, order the judgment to be deferred, and proceed to
decide upon the motion in arrest of judgment or for a new trial.” (Italics added.)
The Court of Appeal here held that section 1200 only permits a defendant
to respond to the trial court’s allocution by showing the types of “cause against the
judgment” described in section 1201: that the defendant is insane, that the trial
court should grant a motion in arrest of judgment, or that the court should order a
new trial. Defendant challenges that holding. He argues that section 1200 does
give a criminal defendant the right to make a personal statement in mitigation of
punishment, and that the trial court here violated this right. In support, he cites a
Court of Appeal decision, Shannon B., supra, 22 Cal.App.4th 1235. That case
relied on the legislative history of sections 1200 and 1201, which we describe
As explained in Shannon B., supra, 22 Cal.App.4th 1235, sections 1200
and 1201 were enacted in 1872, as part of California’s first penal code; they are
virtually identical to statutes that had been enacted by the first California
Legislature in 1850, when California acquired statehood. (Stats. 1850, ch. 119,
§§ 488-489, p. 311.) The criminal procedure statutes enacted in 1850 “were based
almost entirely on the 1848-1849 Field Codes of Civil Procedure and Criminal
Procedure drafted in New York” (Kleps, The Revision and Codification of
California Statutes 1849-1953 (1954) 42 Cal. L.Rev. 766, fn. 4), and the
antecedents of sections 1200 and 1201 in the 1850 statutes are virtually identical
to the Field Codes. (See Com’rs. on Practice and Pleadings, Code of Crim. Proc.
of the State of N.Y. (1850) pp. 258-259.)3 The drafters’ notes to the Field Code
The Field Code provisions relevant here are sections 541 and 542. Section
541 provides: “When the defendant appears for judgment, he must be informed
by the court, or by the clerk under its direction, of the nature of the indictment, and
of his plea, and the verdict, if any thereon; and must be asked whether he have any
legal cause to show, why judgment should not be pronounced against him.”
Section 542 provides: “He may show for cause, against the judgment, [¶] 1.
(Footnote continued on next page.)
state that these provisions “are in conformity with the existing practice.” (Id., p.
Thus, defendant argues, when the California Legislature in 1872 enacted
sections 1200 and 1201, which are the criminal procedure statutes at issue here, it
intended to codify those statutes’ antecedents enacted in 1850, and the 1850
statutes in turn had adopted the legal practices existing at that time in this country
and in England, whose common law became the foundation of California’s legal
system. (See Stats. 1850, ch. 95, p. 219 [“The Common Law of England, so far as
it is not repugnant to or inconsistent with the Constitution of the United States, or
the Constitution or laws of the State of California, shall be the rule of decision in
all the Courts of this State”].) As defendant explains and as described below, in
1850 the legal practice in this country and in England was to permit a criminal
defendant, in response to the trial court’s allocution, to make a personal request for
The concept of allocution has its origins in English common law; it dates
back to the 17th century, when punishment for most felony convictions was death,
and criminal defendants had neither the right to counsel nor the right to testify on
their own behalf. (Thomas, Beyond Mitigation: Towards a Theory of Allocution
(2007) 75 Fordham L.Rev. 2641, 2645; Marshall, Lights, Camera, Allocution:
(Footnote continued from previous page.)
That he is insane; and if, in the opinion of the court, there be reasonable ground
for believing him to be insane, the question of his insanity must be tried . . . . [¶]
2. That he has good cause to offer, either in arrest of judgment, or for a new trial;
in which case the court may, in its discretion, order the judgment to be deferred,
and proceed to decide upon the motion in arrest of judgment, or for a new trial.”
(Com’rs. on Practice and Pleadings, Code of Crim. Proc. of the State of N.Y.,
supra, § 541, p. 258.)
Contemporary Relevance or Director’s Dream? (1987) 62 Tul. L.Rev. 207, 209;
Barrett, Allocution, supra, 9 Mo. L.Rev. at pp. 119-121; Shannon B., supra, 22
Cal.App.4th at p. 1240.) In its earliest form, the purpose of the trial court’s
allocution was to allow a convicted defendant facing execution to assert that the
sentence should not be carried out, but only for these limited grounds: the
defendant was insane, was pregnant, had been misidentified, had been pardoned
by the Crown, or was entitled to the “benefit of the clergy.” (Thomas, supra, 75
Fordham L.Rev. at p. 2646; In re Shannon B., supra, 22 Cal.App.4th at p. 1240.)
But by the 19th century, when criminal defendants could testify and be
represented by counsel, the purpose of allocution had been broadened, both in
England and in the United States, to allow a criminal defendant to make a personal
statement in mitigation of punishment. In 1847, a leading British criminal law
treatise explained: “It is now indispensably necessary, even in clergyable
felonies, that the defendant should be asked by the clerk if he has any thing to
say why judgment of death should not be pronounced on him; and it is material
that this appear upon record to have been done . . . . On this occasion, he may
allege any ground in arrest of judgment; or may plead a pardon, if he has obtained
one . . . . If he has nothing to urge in bar, he frequently addresses the court in
mitigation of his conduct, and desires their intercession with the king, or casts
himself upon their mercy.” (1 Chitty, A Practical Treatise on The Criminal Law
(5th Am. ed. 1847) p. 699, fns. omitted, italics added.)
Although Chitty’s treatise mentions only defendants facing a sentence of
death, a prominent American criminal law treatise published several years later in
The phrase “clergyable felonies” refers to crimes for which the trial court
has the discretion not to sentence the defendant to death. (1 Chitty, A Practical
Treatise on The Criminal Law, supra, pp. 671-674.)
1866, quoting from the very passage by Chitty we mentioned in the preceding
paragraph, points to “the formalities which are gone through with at the passing of
sentence” in general, making no distinction between defendants facing a sentence
of death and those subject only to lesser punishments. (1 Bishop, Commentaries
on the Law of Criminal Procedure (1866) § 865, p. 609; see also id. at p. 609, fn. 5
[discussing decisions in noncapital cases in which the trial court failed to give the
allocution].) And an earlier American treatise, published six years after the 1847
British treatise by Chitty, explicitly states that a defendant in a noncapital case is
permitted to ask for a lesser sentence: “In capital cases . . . the clerk . . . asks the
prisoner— ‘. . . have you anything to say why sentence of death should not be
passed . . . against you;’ upon which the prisoner may move in arrest of judgment
. . . or he may address any other observations to the judge which he may think
proper. In other [noncapital] cases, when sentence is about to be passed, the
defendant may address the court in mitigation of punishment, as well as in arrest
of judgment, whether he was tried and convicted or pleaded guilty.” (1
Waterman’s Archbold, Practice, Pleading and Evidence in Criminal Cases (1853)
p. 180—1, italics added, fn. omitted.)
Thus in 1872, when California’s Legislature enacted section 1200’s
allocution provision, the prevailing legal practice in both England and the United
States — and followed in California (see p. 6, ante) — was that in response to the
trial court’s inquiry whether there was any legal cause why sentence should not be
pronounced, the defendant could make a personal statement asking for lesser
punishment. Based on this legal history, the Court of Appeal in Shannon B.
reasoned: “[T]he inquiry whether a defendant ‘has any legal cause to show why
judgment should not be pronounced against him’ (Pen. Code, § 1200) gives the
defendant the right not only to assert insanity or grounds in arrest of judgment or
for a new trial (Pen. Code, § 1201), but also the right to make a personal statement
and present information in mitigation of punishment.” (Shannon B., supra, 22
Cal.App.4th at p. 1246.) Defendant urges us to adopt that approach here.
But the language of section 1200 affords no support for that conclusion.
Section 1200 requires the trial court to ask the defendant whether there is “legal
cause to show why judgment should not be pronounced against him.” But when,
in response, the defendant asks for lesser punishment, the defendant is not
providing the court with reasons not to pronounce judgment; rather, the defendant
is giving reasons why the court should pronounce a more lenient sentence. In the
words of the Court of Appeal in this case: “Irrespective of whether the common
law right of allocution included a right to make a statement in mitigation, [section
1200] address[es] quite a different matter — whether legal cause to pronounce
judgment does or does not exist; i.e., whether there is some infirmity that makes
pronouncement of judgment improper.”
The goal of statutory construction is to implement the intent of the
Legislature that enacted the statute whose meaning is in question. “We begin with
the statutory language because it is generally the most reliable indication of
legislative intent. If the statutory language is unambiguous, we presume the
Legislature meant what it said, and the plain meaning of the statute controls.”
(Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 211, italics added.)
Here, a mitigating statement by the defendant is not “legal cause to show why
judgment should not be pronounced,” and thus does not come within the plain
meaning of section 1200. Thus, section 1200 does not entitle the defendant, in
response to the trial court’s allocution, to offer a personal statement in mitigation
of punishment.5 This does not mean, however, that such a right does not exist. As
We disapprove In re Shannon B., supra, 22 Cal.App.4th 1235, to the extent
it is inconsistent with our decision.
the Attorney General observes, section 1204 provides such a right. But, the
Attorney General points out, any such statement must be made under oath and be
subject to cross-examination. The Attorney General’s argument proceeds as
Section 1204 states: “The circumstances [in aggravation or mitigation of
punishment] shall be presented by the testimony of witnesses examined in open
court, except that when a witness is so sick or infirm as to be unable to attend, his
deposition may be taken . . . . No affidavit or testimony, or representation of any
kind, verbal or written, can be offered to or received by the court . . . in
aggravation or mitigation of the punishment, except as provided in this and the
preceding section. This section shall not be construed to prohibit the filing of a
written report by a defendant or defendant’s counsel on behalf of a defendant if
such a report presents a study of his background and personality and suggests a
rehabilitation program.” (Italics added.)
The Attorney General points out: “Pursuant to section 1204, a defendant
has the right to call witnesses, including himself,” to testify. (See generally, In re
Anderson (1968) 69 Cal.2d 613, 666 [“ ‘[S]ection 1204 . . . “requires the court in
determining the consequences of guilt to receive evidence . . . either in mitigation
or aggravation of the punishment to be imposed.” ’ ”]; see also People v. Chi Ko
Wong (1976) 18 Cal.3d 698, 725; In re Cortez (1971) 6 Cal.3d 78, 88.) By stating
in section 1204 that mitigating evidence must be presented through “the testimony
of witnesses examined in open court” rather than verbal representations, the
Legislature has declared that a criminal defendant wishing to make an oral
statement to the court in mitigation of punishment must do so through testimony
given under oath.6 (A defendant may also provide an unsworn written statement
either by submitting the statement to the probation officer for inclusion in the
probation report (Cal. Rules of Court, rule 4.411.5(a)(4)), if one is prepared; or by
including such a statement in a “written report” filed by the defense that “presents
a study of his background and personality and suggests a rehabilitation program”
Defendant, on the other hand, argues: “Requiring sworn testimony and
cross-examination . . . would burden non-capital cases with an added penalty-
phase-like trial, when in most instances the defendant simply wishes to speak
briefly to the judge.” Contrary to this argument, section 1204 does not give
parties the right to turn sentencing hearings into trials akin to the penalty phase of
a capital case. The trial court has the power to “provide for the orderly conduct of
proceedings before it” (Code Civ. Proc., § 128, subd. (a)(3)), and it has great
discretion to exclude evidence that would “necessitate undue consumption of
time” (Evid. Code, § 352). Thus, the court may refuse to hear evidence pertaining
to peripherally relevant matters that will not affect the court’s exercise of its
sentencing discretion, or testimony that merely restates information contained in
the defendant’s statements to the probation officer. (See Cal. Rules of Court, rule
4.411.5(a)(4) [probation report must include “[a]ny statement made by the
defendant to the probation officer, or a summary thereof, including the defendant’s
account of the circumstances of the crime”].) And a trial court that prefers to
proceed more informally may, with the parties’ consent, choose not to have the
Just as an attorney representing a criminal defendant may ask for a lenient
sentence without giving sworn testimony, a defendant who has chosen self-
representation may make such an argument without being sworn, so long as the
argument is based on evidence that is before the sentencing court.
defendant testify under oath and instead allow the defendant to make a brief
unsworn statement urging lesser punishment.
In any event, whether a defendant’s personal mitigating statement at
sentencing should be made under oath and subject to cross-examination by the
prosecutor is a matter of policy not for this court but for the Legislature. That
body is entrusted with the task of enacting the laws for our state, and, in
performing that responsibility, considers the reasons or the need for a particular
statute. Our task is limited to interpreting the Legislature’s enactments, and we
have done so here.
Defendant notes that in People v. Robbins (1988) 45 Cal.3d 867, this court
stated that “[i]n the noncapital sentencing context, a defendant does not generally
have an opportunity to testify as to what penalty he feels is appropriate.” (At
p. 889.) But “[a]n appellate decision is not authority for everything said in the
court’s opinion but only ‘for the points actually involved and actually decided.’ ”
(Santisas v. Goodin (1998) 17 Cal.4th 599, 620.) At issue in Robbins was the
right of a defendant in a death penalty case to make a statement in mitigation.
Capital cases are governed by a sentencing scheme unique to those cases (see
generally, §§ 190.1, 190.2, 190.3, 190.4), and this court in Robbins was construing
that particular sentencing scheme. By contrast, this case involves a sentencing
statute applicable to criminal cases generally.
Defendant argues that the federal Constitution entitles a defendant in a
criminal case to make a personal statement in mitigation of punishment. Although
he mentions the Constitution’s Fifth, Sixth and Fourteenth Amendments, he does
not explain why the Fifth or Sixth Amendments might be pertinent to his claim,
and focuses instead on the Fourteenth Amendment’s right to due process of law.
It is unclear whether, in this argument, he claims to have a right under the federal
Constitution to make an unsworn personal statement without being subject to
cross-examination. If that is defendant’s argument, we reject it. “The
fundamental requirement of due process is the opportunity to be heard ‘at a
meaningful time and in a meaningful manner.’ ” (Mathews v. Eldridge (1976) 424
U.S. 319, 333.) California law, through section 1204, gives a criminal defendant
the right at sentencing to make a sworn personal statement in mitigation that is
subject to cross-examination by the prosecution. This affords the defendant a
meaningful opportunity to be heard and thus does not violate any of defendant’s
rights under the federal Constitution.
We now consider whether, on the facts of this case, the trial court erred in
not allowing defendant to testify in mitigation of punishment. We agree with the
Attorney General that it did not. Just before pronouncing sentence, the trial court
inquired, “With that, the matter’s submitted, correct?” Defense counsel replied,
“Submitted.” Defense counsel made no attempt to call defendant to testify, and
defendant himself did not ask to do so. Under these circumstances, there was a
forfeiture of defendant’s right to testify in mitigation of punishment. We need not
decide here whether the right to testify in mitigation of punishment is a right that
is personal to the defendant (see People v. Robles (1970) 2 Cal.3d 205 [defendant
has the right to testify at trial over his attorney’s objection]) or whether it is a
decision that may be made by defense counsel, because neither made a timely
request that defendant be allowed to testify.
It was only after the trial court had denied probation and was in the process
of sentencing defendant to prison that defendant asked, “Can I speak, your
honor?” Assuming for the sake of argument that this may be construed as a
request to testify in mitigation of punishment, it came too late; it should have been
made before the court started to pronounce defendant’s sentence. (State v.
Rankins (1999) 133 N.C.App. 607, 614 [trial court properly denied the
defendant’s request to address the court after sentence had been imposed because
“it was too late in the proceedings to inform the court of mitigating factors
relevant to sentencing”]; see also People v. Earley (2004) 122 Cal.App.4th 542,
546 [trial court did not abuse discretion in denying a defendant’s request to testify
at trial, made after the defense had rested but before the jury was instructed].)
We affirm the judgment of the Court of Appeal.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Evans
Review Granted XXX 135 Cal.App.4th 1178
Date Filed: July 24, 2008
County: San Mateo
Judge: Robert D. Foiles
Attorneys for Appellant:Richard M. Doctoroff, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Mary Jo Graves,
Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Ryan B. McCarroll,
Linda M. Murphy and David M. Baskind, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Richard M. Doctoroff
523 Octavia Street
San Francisco, CA 94102
David M. Baskind
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Petition for review after the Court of Appeal affirmed a judgment of conviction of a criminal offense. The court limited review to the following issue: Did the trial court deny defendant due process or violate any right of allocution when it denied his request to speak on his own behalf before the court imposed sentence?
|Thu, 07/24/2008||44 Cal. 4th 590, 187 P.3d 1010, 80 Cal. Rptr. 3d 174||S141357||Review - Criminal Appeal||closed; remittitur issued|
|1||The People (Plaintiff and Respondent)|
Represented by David M. Baskind
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
|2||Evans, Blaine Allen (Defendant and Appellant)|
Represented by Richard M. Doctoroff
Attorney at Law
523 Octavia Street
San Francisco, CA
|3||Evans, Blaine Allen (Defendant and Appellant)|
Represented by First District Appellate Project
730 Harrison Street, Suite 201
730 Harrison Street, Suite 201
San Francisco, CA
|Jul 24 2008||Opinion: Affirmed|
|Feb 24 2006||Record requested|
|Feb 24 2006||Petition for review filed|
Blaine Allen Evans, appellant Richard M. Doctoroff, CA/appointed
|Feb 28 2006||Received Court of Appeal record|
file jacket/briefs/sealed envelope/transcripts/accordian file
|Apr 17 2006||Time extended to grant or deny review|
to and including May 25, 2006, or the date upon which review is either granted or denied.
|Apr 26 2006||Petition for review granted; issues limited (criminal case)|
Petition for review GRANTED. The issue to be briefed and argued is limited to the following: Did the trial court deny defendant due process or violate his right of allocution when it denied his request to speak on his own behalf before the court imposed sentence? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
|May 5 2006||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Ricahrd M. Doctoroff is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
|Jun 5 2006||Request for extension of time filed|
Atty Richard Doctoroff counsel for Evans requesting to July 5, 2006, to file opening brief on the merits (to court for permission)
|Jun 9 2006||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including July 5, 2006.
|Jun 26 2006||Opening brief on the merits filed|
Baline Allen Evans, Defendant and Appellant. Richard M. Doctoroff, appointed counsel
|Jul 20 2006||Request for extension of time filed|
Atty David Baskind, Deputy Atty General, requesting to August 25, 2006, (30-days) to file answer brief on the merits (to court for permission)
|Jul 25 2006||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the mertis is extended to and including August 25, 2006.
|Aug 18 2006||Request for extension of time filed|
Atty David Baskind, Deputy Attorney General, for The People requesting to September 1, 2006, to file answer brief on the merits (to court for permission)
|Aug 21 2006||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 1, 2006.
|Aug 31 2006||Answer brief on the merits filed|
The People, Plaintiff and Respondent David M. Baskind, Deputy Attorney General
|Sep 18 2006||Request for extension of time filed|
by appellant requesting a 30-day extension to and including October 20, 2006, to file appellant's reply brief on the merits.
|Sep 20 2006||Extension of time granted|
To October 20, 2006 to file appellant's reply brief on the merits.
|Oct 18 2006||Reply brief filed (case fully briefed)|
Blaine Allen Evans, Defendant and Appellant. Richard M. Doctoroff, CA-appointed
|Jan 17 2007||Compensation awarded counsel|
|Apr 9 2008||Case ordered on calendar|
to be argued on Thursday, May 8, 2008, at 9:00 a.m. in San Francisco
|Apr 28 2008||Filed:|
additional authorities for oral argument from Richard Doctoroff counsel for appellant.
|May 8 2008||Filed:|
Appellant's "Additional Authority for Oral Argument" by Richard M. Doctoroff, counsel Respondent will have 7 days to file a response.
|May 8 2008||Cause argued and submitted|
|Jul 23 2008||Notice of forthcoming opinion posted|
|Jul 24 2008||Opinion filed: Judgment affirmed in full|
Majority Opinion by Kennard, J. ----- joined by George C.J., Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
|Aug 26 2008||Remittitur issued (criminal case)|
|Sep 2 2008||Received:|
Receipt for remittitur
|Oct 16 2008||Compensation awarded counsel|
|Jun 26 2006||Opening brief on the merits filed|
|Aug 31 2006||Answer brief on the merits filed|
|Oct 18 2006||Reply brief filed (case fully briefed)|
|Dec 17, 2008|
Annotated by diana teasland
Written by Elizabeth McCrillis
January 24, 2006: The Court of Appeal, First Appellate District, Division One, affirmed the trial court decision.
July 24, 2008: Supreme Court of California affirmed the judgement of the Court of Appeal.
Key Points of the Decision:
Legislative History: Defense argued that in 1872, when the California Legislature enacted the allocution provision in Penal Code Section 1200, it intended to codify the existing common law practice. At that time, “the prevailing legal practice in both England and the United State—and followed in California…—was that in response to the trial court’s inquiry whether there was any legal cause why sentence should not be pronounced, the defendant could make a personal statement asking for lesser punishment.” (pg. 7).
Statutory Construction: The goal of the court is to implement legislative intent, which is most reliably determined by looking to the statutory language used by the Legislature. When the language of a statute is unambiguous, the plain meaning of the statute controls. In this case, the defendant’s mitigation statement does not fall within the plain meaning of section 1200 because it is not “legal cause to show why judgement should not be pronounced.” Therefore, section 1200 does not provide defendant with the right to offer a personal statement in mitigation of punishment in response to the trial court’s allocution. (pg. 8).
Defendant’s Right to Testify: Penal Code Section 1204 provides defendants the right to offer personal statements in mitigation of punishment while under oath and subject to cross-examination: “By stating in section 1204 that mitigating evidence must be presented through ‘the testimony of witness examined in open court’ rather than verbal representation, the Legislature has declared that a criminal defendant wishing to make an oral statement to the court in mitigation of punishment must do so through testimony given under oath.” (pg. 9-10).
Exceptions for Unsworn Written Statements: A defendant may provide an unsworn written statement by (1) submitting the statement to the probation officer to include in the probation report, and (2) including a statement in a written report filed by the defense that provides a study of defendant’s background and personality and suggests a rehabilitation program. (pg. 10).
Trial Court’s Discretion: The trial court may, with the consent of the parties, decide to proceed more informally and permit the defendant to make a brief unsworn statement asking for a lesser punishment. (pg. 10-11).
Proper Role of the Court: Whether, in response to the allocution, the defendant has the right to make an unsworn personal statement in mitigation of punishment is a matter of policy that is properly left to the legislature. The court is limited to interpreting the Legislature’s laws rather than setting policy. (pg. 11).
Constitutional Rights of the Defendant: Penal Code section 1204 gives criminal defendants the right at sentencing to make a personal statement in mitigation of punishment while under oath and subject to cross examination. This provides defendants with a meaningful opportunity to be heard at an important time in the process and thus does not violate defendants’ due process rights or any other rights under the federal Constitution. (pg. 12).
Forfeiture of Right to Testify: On the facts of this case, the trail court did not err in not allowing the defendant to speak in mitigation of punishment. Defendant forfeited his right to testify in mitigation of punishment when the matter was submitted. Assuming that the defendant’s request was a request to testify, it was made too late. He should have made it before the court started to pronounce his sentence. (pg. 12).