Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F02907527-6, R. L. Putnam, Judge.
Fred Gagliardini, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Virna L. DePaul, Deputy Attorneys General, for Plaintiff and Respondent.
Before Cornell, Acting P.J., Dawson, J. and Kane, J.
On December 2, 2002, Roary Allen Taylor (appellant), who was on active parole, drove a vehicle while possessing 0.02 grams of rock cocaine and drug paraphernalia. On December 17, 2002, appellant pled guilty to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and misdemeanor possession of drug paraphernalia (id., § 11364). He also admitted two prior prison term allegations. In exchange, the prosecutor agreed that appellant was eligible for Proposition 36 treatment. If appellant violated probation, his maximum sentence was five years in state prison—the upper term of three years, plus 2 one-year prior prison term enhancements.
On March 25, 2003, the trial court ordered imposition of judgment suspended and placed appellant on two years’ formal probation. Appellant was referred to a residential treatment program for an assessment. If the assessment determined he no longer needed inpatient treatment, he would be referred to an outpatient program.
Over the next four years, appellant admitted violating probation on four occasions. Each of the violations was drug related, and each time the trial court sustained the violation and reinstated appellant on probation. At the hearing on the fourth violation, held April 17, 2007, the trial court warned appellant that if he failed once again to complete the inpatient substance abuse program at King of Kings, it would impose the “full four years and that will not be able to be changed in the future if there is any violation.”
The four-year term consists of the middle term, plus 2 one-year prior prison term enhancements.
Appellant was subsequently charged with another violation of probation, and a contested hearing was held on August 13, 2007. The senior treatment director of the King of Kings testified that appellant began the treatment program on April 19, 2007. On Sunday, July 8, 2007, appellant could not be found on the premises and had not been given permission to leave. The director testified that appellant had previously asked to attend church, but was told his progress in the program would determine whether he could or could not attend. At 11:00 p.m. that Sunday, appellant returned to the treatment facility to pick up his clothes and said to the staff, “‘I messed up, didn’t I?’” Appellant was then discharged from the program.
Appellant testified that he had asked the director on Friday whether he could attend church on Sunday. The director had said to him, “‘Well, it depends on you.’” Appellant did not see the director again before Sunday but decided to attend church. Appellant acknowledged on cross-examination that he did not have permission to leave the program on July 8, 2007.
Following testimony, the trial court asked defense counsel if he had anything further, and defense counsel stated, “No, we submit.” The prosecutor argued that appellant knew he did not have permission to leave the treatment facility, that this was appellant’s fifth violation of probation, and that appellant had multiple opportunities to complete probation but failed to do so. Defense counsel then argued for leniency, stating that “in four years, [appellant] never picked up another case.”
The court found appellant violated probation and denied reinstatement, stating:
“It just appears he’s been given every opportunity. And I would note on the minute order the last time out, it was very clearly stated that he was to finish that program or he is going to prison, so I think you knew what was up.”
Appellant then asked, “Your Honor, can I speak?” The trial court responded, “No, I think we’re done.” The court then sentenced appellant to state prison for four years.
Appellant’s only contention on appeal is that he was denied his statutory and federal constitutional due process right to allocution when the trial court refused to allow him to address the sentencing court. We find no error and affirm.
DISCUSSION
Appellant’s Right to Allocution
“Allocution is the formal inquiry by the judge of the defendant as to whether he [or she] has any cause to show why sentence should not be pronounced. [Citations.]” (People v. Cross (1963) 213 Cal.App.2d 678, 681.)
The right to allocution is codified in Penal Code sections 1200 and 1201. Section 1200 provides:
All further statutory references are to the Penal Code unless otherwise stated.
“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.”
Section 1201, in turn, states: “He or she may show, for cause against the judgment: [¶] (a) That he or she is insane …. [¶] (b) That he or she has good cause to offer, either in arrest of judgment or for a new trial ….”
Although section 1200 permits a defendant to respond to the trial court’s allocution by showing the types of “cause against the judgment” described in section 1201—in other words 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—appellant relies on In re Shannon B. (1994) 22 Cal.App.4th 1235, for the proposition that section 1200 “encompasses a right of defendants to make personal statements in their own behalf and present information in mitigation of punishment.” (In re Shannon B., supra, at pp. 1238, 1246.)
Our Supreme Court recently rejected that very argument in People v. Evans (2008) 44 Cal.4th 590 (Evans) which was decided after briefing in this case was due. The facts in Evans are similar to those here. The defendant was convicted of receiving stolen property. On the day set for sentencing, the trial court asked if there was any legal cause why sentence could not be pronounced. Defense counsel replied, “‘No legal cause.’” The court asked defense counsel if he would like to make any comments, and defense counsel responded by asking that the court give the defendant “‘one more chance’” by placing him on probation and into a residential drug treatment program. The prosecutor argued against defense counsel’s request. The trial court then asked if the matter was submitted, and defense counsel replied that it was. (Id. at p. 593.) Thereafter the court agreed with the prosecutor that the defendant did not deserve probation and stated its reasons why. The court formally denied the defendant’s request for probation, found no good cause to dismiss the defendant’s prior strike, and ordered the defendant committed to the Department of Corrections. The defendant then interjected and asked to speak. The trial court replied, “‘No,’” and then imposed a five-year prison sentence. (Ibid.)
On appeal, the defendant, relying on In re Shannon B., argued that section 1200 gave him a right to make an unsworn personal statement in mitigation of punishment. The court disapproved of In re Shannon B. and found that “the language of section 1200 affords no support for that conclusion,” (Evans, supra, 44 Cal.4th at p. 597 & fn. 5].)
“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. … ‘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.’” (Ibid., italics in original.)
But, as noted by the court in Evans, although section 1200 does not entitle the defendant, in response to the trial court’s allocution, to offer a personal statement in mitigation of punishment, such a right does exist pursuant to section 1204. 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 court in Evans explained that 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.” (Evans, supra, 44 Cal.4th at p. 598, fn. omitted.) The Evans court noted that 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)) 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” (§ 1204).
With this analysis in mind, the court in Evans then considered whether the trial court erred in not allowing the defendant to testify in mitigation of punishment and determined 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.… [¶] 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.” (Evans, supra, 44 Cal.4th at p. 600.)
Here, too, the trial court did not err in not allowing appellant to testify in mitigation of punishment. After appellant testified at the hearing, the trial court asked defense counsel if he had anything further. He replied, “No, we submit.” Defense counsel made no attempt to call appellant to testify in mitigation of punishment, and appellant did not ask to do so. It was only after the trial court revoked and denied reinstatement of probation and was in the process of sentencing appellant to prison that appellant asked, “Your Honor, can I speak?” Under these circumstances, there was a forfeiture of appellant’s right to testify in mitigation of punishment. To the extent that appellant’s request can be construed as a request to testify in mitigation of punishment, it came too late. (Evans, supra, 44 Cal.4th at p. 600.)
Appellant also argues that his federal due process rights entitled him to make a personal statement in mitigation of punishment. This argument was also made in Evans:
“It is unclear whether, in this argument, [the defendant] 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.”’ [Citation.] 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 the defendant’s rights under the federal Constitution.” (Evans, supra, 44 Cal.4th at p. 600.)
DISPOSITION
The judgment is affirmed.