P. v. Oldham
Filed 5/16/06 P. v. Oldham CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ELLIS OLDHAM, Defendant and Appellant. | H028763 (Santa Clara County Super. Ct. No. CC252174) |
In this appeal defendant contends that he was denied his right of allocution, that is, he was denied his right to speak on his own behalf at sentencing. For the reasons outlined in this opinion, we affirm.
Procedural History
On October 22, 2002, defendant pled no contest to inflicting corporal injury on a cohabitant. (Pen. Code, § 273.5, subd. (a).) In exchange for his plea, defendant was promised probation with a six-month county jail term and the dismissal of other charges. On November 22, 2002, the court placed defendant on probation with various terms and conditions. The court dismissed defendant's other charges.
On May 22, 2003, defendant appeared before the court on a petition to revoke his probation. On June 5, 2003, defendant admitted the probation violation. The court reinstated probation under the same terms and conditions.
A second petition to revoke probation, filed on March 14, 2005, alleged that defendant had violated his probation by failing to make payment toward state restitution; failed to complete a domestic violence program; failed to report to and maintain contact with his probation officer on two occasions; and failed to make himself available for chemical testing.
At the March 14, 2005 probation revocation hearing, defendant testified extensively about why he failed to make payments to the restitution fund. He claimed to have applied for many jobs, but claimed that he was unsuccessful despite being in good health. Defendant was unable to provide any dates or copies of job applications. Defendant testified that he missed two appointments at his domestic violence program, but provided no evidence to substantiate his claim that he owed less than $425 to the program. Defendant claimed not to have been aware that he could have enrolled in another program. He admitted he was in violation of his probation for failing to re-enroll in and complete a domestic violence program. At the end of the hearing, the court found defendant in violation of his probation. The court ordered probation to remain revoked and sentenced defendant to the midterm of three years in prison with 330 days custody credits.
Defendant filed a notice of appeal on April 28, 2005.
On appeal, defendant contends that the court violated his due process right to allocution " when the court refused his request to address the court for purposes of explanation, rebuttal and mitigation, requiring a remand for further proceedings."
Background
After the court found defendant in violation of his probation, Judge Lee proceeded to sentence defendant. The probation report considered by the court in making its sentencing decision described the events of May 5, 2002--the date on which the events underlying defendant's offense took place. The probation report stated that the victim reported that defendant pushed her onto the bed, threw hot coffee on her left arm causing second degree burns, choked her with his hands and said he should have killed her. Defendant's probation officer noted that when he interviewed defendant on January 13, 2005, defendant denied throwing coffee on the victim or threatening her. Further, the probation officer wrote " [t]he defendant is adamant that he is innocent and that he pled to something that he did not do."
The prosecutor argued that defendant should not be continued on probation and requested that the court sentence defendant to the aggravated term. Defense counsel requested that the court allow defendant to testify about the events of May 5, 2002. Counsel asserted that he would have defendant " actually tell you what really happened on May 5th, 2002 so the Court can decide the seriousness of this offense and what his punishment should be."
Responding to defense counsel's request to have defendant testify, the court stated it would allow defense counsel to make an offer of proof as to what evidence defendant would present, but " we are not going to relitigate his guilt under the guise of calling that mitigation." [1]
Defense counsel made an offer of proof that was primarily a recitation of defendant's version of the events of May 5, 2002. Defendant's version of events included a description of the victim pouring coffee on herself during an argument, which he maintained did not cause serious injury. Counsel stated that the testimony was not offered to describe defendant's participation in domestic violence classes, because the court found no probation violation on that allegation. Finally, defense counsel offered to have defendant testify about previous dirty drug tests, his performance on probation in 1996 and 1997, and his difficulties in " running into financial problems" in the present " declining economy."
Judge Lee concluded that the " only fair reading of the offer of proof by the defendant is I wasn't guilty of anything, and if I did anything, it was just in self-defense--the offer of proof, he's clearly not guilty of this offense." Nevertheless, Judge Lee stated he would " certainly hear from defendant, he is entitled to make a statement but we are not going to talk about what did or didn't happen on May 5th. But if he wants to talk about the other things that any defendant could normally talk about in a violation of probation hearing, he can certainly give the evidence . . . he believe[s] is mitigated."
Discussion
Defendant asserts that the court's denial of his request to explain the circumstances of his original crime to rebut inaccuracies in the probation report and to show mitigation, denied him due process.
Defendant asserts that the Ninth Circuit, in Boardman v. Estelle (9th Cir.1992) 957 F.2d 1523 (Boardman), held that the right of allocution is constitutionally secured. In Boardman, the Ninth Circuit ruled that a California court's refusal to allow the defendant to speak at a sentencing hearing violated the defendant's federal constitutional rights. (Id. at p. 1530.)
The " right" of a defendant to make a personal statement at the time of sentencing, rooted in common law, " would appear still to be recognized in more than half of the American jurisdictions, although it finds expression in many forms and comes from many sources. In at least one state [Rhode Island], the right rises to a constitutional level. [Citations.] In many more states the right is guaranteed by statute. [Citations.] In a few more jurisdictions, the right is secured by rules of court. [Citations.] In other jurisdictions, case law is the only source of the defendant's right. [Citations.]" (McGautha v. California (1971) 402 U.S. 183, 228-229, fn. 7, dissent of Douglas, J., holding limited on other grounds as recognized in Sawyer v. Butler (5th Cir. 1989) 881 F.2d 1273.)
When, as here, imposition of sentence is suspended and the defendant is granted probation, the " right" of allocution exists when probation is revoked and sentence is ultimately imposed. (People v. Billetts (1979) 89 Cal.App.3d 302, 311; People v. Parga (1967) 249 Cal.App.2d 820, 821.)
Contrary to the Ninth Circuit, we note that other federal circuits have concluded that the failure to allow allocution is not an error of constitutional dimension. (See, e.g., Milone v. Camp (7th Cir. 1994) 22 F.3d 693, 704, fn. 10; U.S. v. Tamayo (11th Cir. 1996) 80 F.3d 1514, 1518-1519, fn. 5.) Although the Ninth Circuit has declared the right of the defendant to personally address the court to be " an essential element of a criminal defense" (Boardman, supra, 957 F.2d at p. 1526), the United States Supreme Court has " held that failure to ensure such personal participation in the criminal process is not necessarily a constitutional flaw in the conviction." (McGautha v. California, supra, 402 U.S. at p. 220, citing Hill v. United States (1962) 368 U.S. 424.) The California Supreme Court has acknowledged the holding of In re Shannon B. (1994) 22 Cal.App.4th 1235, that a noncapital defendant is entitled to allocution as a matter of right, but observed that several other courts have held to the contrary. (People v. Lucero (2000) 23 Cal.4th 692, 717-718.) In short, there is no controlling authority supporting defendant's contention that he was denied due process when the court prevented him from making a personal statement at the time of sentencing. Thus, in the absence of clear direction from the United States Supreme Court, we decline to adopt the Ninth Circuit's reasoning, or to find a constitutional due process right to allocution.[2]
Alternatively, defendant argues that he had a statutory right to allocution at sentencing pursuant to Penal Code section 1200.
Penal Code 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."
At common law, the defendant in a felony case was entitled to address the court before the court pronounced judgment. " The right to allocution emerged from an early time when criminal defendants had no right to counsel and could not testify in their own behalf, and with few exceptions the only punishment upon conviction of a felony was death. [Citations.]" (In re Shannon B, supra, 22 Cal.App.4th at p. 1240.) The purpose of this " right to allocution" was to " permit the assertion of one of the few grounds for avoiding or delaying execution: the defendant had received a pardon from the crown, was insane, was pregnant, was not the person convicted, or was entitled to claim 'benefit of clergy.' [Citations.]" (Ibid.)
The Federal Rules of Criminal Procedure include a " right of allocution" that extends beyond the common law right, allowing the defendant a right to speak personally in his own behalf at sentencing. (Fed. Rules Crim. Proc., rule 32(i)(4)(A)(ii).)
In Green v. United States (1961) 365 U.S. 301, 304 (Green ), the United States Supreme Court considered the scope of the federal rule, noting that " major changes" have evolved in criminal procedure since the common law right had been established. The Green court mentioned " the sharp decrease in the number of crimes which were punishable by death, the right of the defendant to testify on his own behalf, and the right to counsel." (Ibid.) Nevertheless, the Green court asserted that it saw " no reason why a procedural rule should be limited to the circumstances under which it arose if reasons for the right it protects remain. None of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." (Ibid.)
The federal rule has no application here. We recognize, however, that the court in In re Shannon B., supra, 22 Cal.App.4th at page 1246 concluded that Penal Code section 1200 confers on defendants the right to make a personal statement and present information in mitigation of punishment.
In Shannon, the court described how California drew its Penal Code from the 1850 Draft Code of Criminal Procedure of the State of New York. The Shannon court concluded that in the 1850's New York recognized a right of allocution that included, at least in capital cases, the defendant's right to argue for leniency. Accordingly, the Shannon court reasoned that because the Draft New York Code allocution provisions were asserted to be " 'in conformity with the existing practice,' " " they must be viewed as fully encompassing, rather than restricting, the existing doctrine of allocution." (In re Shannon B., supra, 22 Cal.App.4th at pp. 1245.) Further, the Shannon court determined that the " code's specification of certain grounds for cause against pronouncement of judgment-- insanity or cause in arrest of judgment or for a new trial--cannot properly be construed as prescribing the only matters that could be raised upon allocution." (Ibid.) Consequently, the Shannon court concluded that the Draft New York Code " encompassed the more expansive 19th century version of allocution, which in turn is embraced by California's statutory right to allocution since it is based on the Draft New York Code." (Id. at pp. 1245-1246.)
Respectfully, we disagree with the Shannon court on this issue. Regardless of whether the common law right of allocution included a right to make a statement in mitigation, the provisions of Penal Code section 1200 address quite a different matter, that is, whether legal cause to pronounce judgment does or does not exist. To put it another way, Penal Code section 1200 asks whether some infirmity makes pronouncement of judgment improper. (Pen. Code, § 1201.) We see no reason to construe the code provisions to include matters they plainly do not address. Defendant does not argue that legal cause to pronounce judgment was lacking. Accordingly, we reject defendant's contention that he has a statutory right to make a personal statement, urging leniency, at sentencing pursuant to Penal Code section 1200. (Accord, People v. Cross (1963) 213 Cal.App.2d 678 (Cross); People v. Sanchez (1977) 72 Cal.App.3d 356.)[3]
Disposition
The judgment is affirmed.
_____________________________
ELIA, J.
WE CONCUR:
_______________________________________
PREMO, Acting P. J.
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BAMATTRE-MANOUKIAN, J.
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[1] The court made this ruling after reviewing People v. Sturgeon (1975) 53 Cal.App.3d 711, in which the defendant, Sturgeon, pled guilty to burglary while on probation. At the probation revocation hearing, the court denied Sturgeon's request to call witnesses who would testify that he was at another place at the time of the burglary. On appeal, Sturgeon argued that he had a right to introduce evidence for purposes of mitigation only to show that he did not commit the offense that the court used to revoke his probation. (Id. at p. 713.) The Second District Court of Appeal rejected Sturgeon's argument, concluding that in essence Sturgeon was attempting to re-litigate the finality of the judgment on the evidence of one side even though that evidence was offered for mitigation only. (Id. at p. 714.)
[2] In any event, even under Boardman, denial of allocution is subject to harmless error analysis. (Boardman, supra, 957 F.2d at p. 1530.) As to grounds for leniency, the court here was well aware of defendant's position that he disputed the " facts" underlying his offense. In Boardman, the Ninth Circuit was reviewing the dismissal of a petition for writ of habeas corpus, and found that it could not conclude on the record before it that the error was harmless. It remanded the matter so that the district court might take evidence on that issue. (Ibid.) Such a procedure would not be appropriate here where the issue has been raised by an appeal from the judgment. Furthermore, Judge Lee did not base his decision to revoke probation and impose the midterm on the circumstances of defendant's underlying offense. In deciding on the mid-term, Judge Lee found one factor in aggravation -- defendant's prior performance on probation was unsatisfactory -- and one factor in mitigation -- defendant voluntarily acknowledged wrongdoing at an early stage in the criminal process. Accordingly, since the court did not rely on the circumstances underlying the original offense to impose the midterm, even if we were to agree with Boardman, we would find any error harmless.
[3] In Cross, the court held that the California rule on allocution is satisfied if counsel represents defendant, and counsel addresses the court on the defendant's behalf. (Cross, supra, 213 Cal.App.2d at pp. 681-682.) Further, the Cross court concluded that it is within the discretion of the court to permit a defendant personally to speak on his own behalf before judgment is pronounced, but that it is conceivable that there may be circumstances where the failure to do so may be an abuse of discretion. (Id. at p. 682.)
