Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 06CM5709, Peter M. Schultz, Judge.
Colin L. Cooper for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
In a plea bargain with no agreement as to sentence, 21-year-old Jonathan Jeffery Miller pled guilty to assault with intent to commit sodomy on his 13-year-old stepsister (Pen. Code, § 220, subd. (a)) in return for the dismissal of two counts of lewd and lascivious acts on a child under the age of 14 (§ 288, subd. (a)) and one count each of sodomy (§ 286, subd. (a)) and sexual battery (§ 243.4, subd. (a)). At the probation and sentencing hearing, the court denied probation and imposed the four-year middle term. (§ 220, subd. (a).)
Later statutory references are to the Penal Code.
On appeal, Miller argues that the denial of probation was an abuse of discretion, that the court’s failure to offer him an opportunity to make a statement at the probation and sentencing hearing violated his right of allocution and his right to due process, and that each of those errors requires a remand for a new probation and sentencing hearing. We will affirm the judgment.
DISCUSSION
1. Denial of Probation
Miller argues that the denial of probation was an abuse of discretion requiring a remand for a new probation and sentencing hearing. The Attorney General argues the contrary.
The parties agree that the exercise of the sentencing court’s broad discretion to determine whether a defendant is suitable for probation will be disturbed on appeal only if the defendant makes a clear showing of an arbitrary or irrational abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 909 (Downey); People v. Martinez (1985) 175 Cal.App.3d 881, 896 (Martinez).) Miller acknowledges he was eligible for a grant of probation only if the sentencing court found unusual circumstances. (§ 1203.065, subd. (b) [“Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of violating … Section 220 for assault with intent to commit a specified sexual offense.”].)
At the probation and sentencing hearing, the court identified Miller’s youthfulness and lack of a prior criminal record as unusual circumstances. Even so, the “very serious nature” of his crime troubled the court – “skin-to-skin contact between [his] penis and his 13-year-old [step]sister’s buttocks” for “about 30 minutes” while “fondling her breasts” – as did his insistence that he “maintains his innocence,” that “it was just a mistake,” and that “he thought he was having sexual contact with a girlfriend.” His stepsister’s report, the court observed, was “completely and absolutely and unequivocally inconsistent with this being a case of mistaken identity by the defendant.” “Had [he] been honest and remorseful,” the court noted, a grant of probation with mental health counseling “would probably have been likely,” since “the first step in rehabilitation, especially of a sexual offender, is admission of the problem.” However, “primarily due to [his] own attitude and unwillingness to make any progress accepting what he’s done in a meaningful sense,” the court lamented, the “chance for some meaningful rehabilitation” to enable him to change into “a person safe for other young girls to be around” was “almost impossible.” With “regret,” the court denied probation.
Later, at the hearing on Miller’s motion to invite an exercise of the court’s discretion to recall the sentence (1170(d) hearing), the court heard lengthy argument before finding, in a word, “nothing” to warrant the granting of his motion. (§ 1170, subd. (d).) Inexplicably, Miller now argues that his “every action” shows “he was taking responsibility for his actions” even though he acknowledges that his statement to the police “was not consistent with what had happened.” Disingenuously, he now argues that in light of “his substance abuse history” the court took “out of context” his statement to the probation officer, “It was a drunken mistake,” even though the probation report shows that he made “no further comments” in his interview with the probation officer.
Equally egregiously, Miller now takes issue with the court’s identifying his “‘story’ to the probation department” as the source of his statement that he thought the person whom he admitted kissing, and whose breasts and stomach he admitted rubbing, was a girl he brought home after a night out drinking, not his stepsister. The source of his statement was not his story to the probation department but hisstory to the police. Yet his story to the police was in the probation report, which the court read and considered before imposing sentence. Miller’s challenge to such a triviality is especially meritless since the attorney who represents him on appeal also represented him at the 1170(d) hearing and could have, but did not, correct the court’s inconsequential slip of the tongue at the time.
The entire warp and woof of Miller’s argument is a tacit request for independent review of the probation and sentencing hearing and the 1170(d) hearing. Yet the rule is well settled that “‘only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation.’” (People v. Rodriguez (1990) 51 Cal.3d 437, 443, quoting People v. Lippner (1933) 219 Cal. 395, 400.) Transparently, Miller fails to satisfy his appellate burden of making a clear showing that denial of probation was an abuse of discretion. (Downey, supra, 82 Cal.App.4th at p. 909; Martinez, supra, 175 Cal.App.3d at p. 896.) In words our Supreme Court used in a different context over a century ago, his argument is but “a trifle scarcely worthy of an appeal.” (Trumpler v. Cotton (1895) 109 Cal. 250, 257.)
2. Opportunity to Speak at Probation and Sentencing Hearing
Miller argues that the court’s failure to offer him an opportunity to make a statement at the probation and sentencing hearing violated his right of allocution and his right to due process and that each error requires a remand for a new probation and sentencing hearing. The Attorney General argues the contrary.
At the outset of the probation and sentencing hearing, the court asked if Miller was present, his attorney replied in the affirmative, and the court, acknowledging having read and considered the probation report, inquired, “Is there any legal cause why judgment or sentence should not be pronounced?” Miller’s attorney replied, “No, sir.” The court inquired, “Would you like to address the probation officer’s report and recommendation?,” Miller’s attorney and the prosecutor spoke, and the court imposed sentence. Throughout the probation and sentencing hearing, Miller was mute. His attorney neither said Miller wished to speak nor asked the court to let him speak.
The right of allocution “has ancient roots in common law.” (In re Shannon B. (1994) 22 Cal.App.4th 1235, 1238 (Shannon).) Emerging “from an early time when criminal defendants had no right to counsel and could not testify in their own behalf” and when “with few exceptions the only punishment upon conviction of a felony was death,” the right of allocution “afforded convicted defendants their only opportunity to address the court.” (Shannon, supra, at p. 1240 (Shannon), citing, e.g., Boardman v. Estelle (9th Cir. 1992) 957 F.2d 1523, 1526 (Boardman).) Since 1872, section 1200 has codified the common law right to allocution in California: “When the defendant appears for judgment he [or she] must be informed by the Court, or by the Clerk, under its direction, of the nature of the charge against him [or her] and of his [or her] plea, and the verdict, if any thereon, and must be asked whether he [or she] has any legal cause to show why judgment should not be pronounced against him [or her].” (Enacted 1872. Amended by Code Amends. 1880, ch. 47, § 90 [changing “indictment” to “charge against him” after “nature of the”].)
Shannon held that California’s codification of the common law right to allocution in section 1200 “encompasses a right of defendants to make personal statements in their own behalf and present information in mitigation of punishment” in criminal proceedings against adults. (Shannon, supra, 22 Cal.App.4th at p. 1238.) Shannon criticized prior cases holding that a court has the discretion to allow the defendant to do so even though the defendant has no right to do so. (Id. at pp. 1243-1244, citing People v. Cross (1963) 213 Cal.App.2d 678, 682 (Cross); People v. Sanchez (1977) 72 Cal.App.3d 356, 359-360 (Sanchez); People v. Wiley (1976) 57 Cal.App.3d 149, 166 (Wiley); cf. People v. Lucero (2000) 23 Cal.4th 692, 718.) Nonetheless, since “juveniles are authorized by statute and court rule to testify at their dispositional hearings and address the judge on the question of disposition,” Shannon held that the “‘essentials of due process and fair treatment’” do not require in juvenile proceedings the section 1200 right to allocution to which adults are entitled. (Shannon, supra, atp. 1248.)
Overruled on another ground by People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10, and disapproved on another ground by People v. Wheeler (1978) 22 Cal.3d 258, 286-287 & fn. 35 (overruled in part on another ground by Johnson v. California (2005) 545 U.S. 162, 168).
In Shannon, both the juvenile and his attorney put the court on notice of the juvenile’s wish to speak at the dispositional hearing, but the court refused. (Shannon, supra, 22 Cal.App.4th at p. 1239.) Here, neither Miller nor his attorney did so at the probation and sentencing hearing. Miller argues that the court inquired only of his attorney, and not of him, about the right of allocution, but the court’s question, “Is there any legal cause why judgment or sentence should not be pronounced?,” did not so limit the target audience. His attorney spoke at length. Miller was mute.
On that record, Miller argues, in reliance on People v. Ornelas (2005) 134 Cal.App.4th 485 (Ornelas), that the court had a duty to inquire if he wanted to make a statement at the probation and sentencing hearing. In Ornelas, the sentencing court made no inquiry at all, and the reviewing court, noting the cases holding “that lack of compliance with section 1200 is harmless error when defendant is represented by counsel and has pleaded guilty,” affirmed the judgment absent a showing of prejudice. (Id. at pp. 488-489, citing People v. Maese (1980) 105 Cal.App.3d 710, 724 [collecting and discussing decisions]; People v. Billetts (1979) 89 Cal.App.3d 302, 310-311 [same].) Here, the court did inquire about the right of allocution, so the error that Ornelas concluded was harmless is absent from the record. We reject his argument that the record shows a violation of his right of allocution.
In reliance on Boardman, Miller argues that “a criminal defendant who wants to make a statement at sentencing has a due process right to do so.” Boardman held only “that due process requires criminal defendants be permitted to allocute before sentencing if they so request.” (Boardman, supra, 957 F.2d at p. 1524, italics added.) Since Miller made no request, his reliance on Boardman is misplaced. The issue of whether the denial of a defendant’s request to speak on his or her behalf before imposition of sentence violates the right of allocution or denies the right to due process is pending before the California Supreme Court. (People v. Evans (2006) 135 Cal.App.4th 1178 (Evans), review granted April 26, 2006, S141357.) The issue in Boardman and Evans is simply not before us.
The constitutional status of the right to allocution is not clear. (Shannon, supra, 22 Cal.App.4th at p. 1242, citing Hill v. United States (1962) 368 U.S. 424, 428 [failure to ask defendant represented by counsel if he or she has anything to say before imposition of sentence is federal rule of court error but “neither jurisdictional nor constitutional” error]; Green v. United States (1961) 365 U.S. 301, 304 (plurality opn.) [none of the relevant major changes in criminal procedure since the seventeenth century “lessens the need for the defendant, personally, to have the opportunity to present to the court his [or her] plea in mitigation”].) Miller cites no persuasive authority that due process required more than the court did here. Since a court “will not decide a constitutional question unless such construction is absolutely necessary” (Estate of Johnson (1903)139 Cal. 532, 534), we reject his argument that the record shows a violation of his right to due process.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, Acting P.J., Levy, J.