People v. Evans

• Decision Date: 24 July 2008
• Docket Number: No. S141357.,S141357.
• Citation: 44 Cal.4th 590,80 Cal.Rptr.3d 174,187 P.3d 1010
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Blaine Allen EVANS, Defendant and Appellant.

187 P.3d 1010

80 Cal.Rptr.3d 174

44 Cal.4th 590

The PEOPLE, Plaintiff and Respondent, v. Blaine Allen EVANS, Defendant and Appellant.

No. S141357.

Supreme Court of California.

July 24, 2008.

Richard M. Doctoroff, under appointment by the Supreme Court, San Francisco, for Defendant and Appellant.

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.

KENNARD, J.

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) 22 Cal.App.4th 1235, 27 Cal.Rptr.2d 800 (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.

I

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, 27 Cal.Rptr.2d 800.) The Court of Appeal here relied on two older decisions, People v. Cross, supra, 213 Cal.App.2d 678, 682, 28 Cal.Rptr. 918, and People v. Sanchez (1977) 72 Cal.App.3d 356, 359, 140 Cal.Rptr. 110. We granted review to resolve the conflict.

II

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, 27 Cal.Rptr.2d 800. That case relied on the legislative history of sections 1200 and 1201, which we describe below.

As explained in Shannon B., supra, 22 Cal.App.4th 1235, 27 Cal.Rptr.2d 800, 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 state that these provisions "are in conformity with the existing practice." (Id., p. 259.)

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 lesser punishment.

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: 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, 27 Cal.Rptr.2d 800.) 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, 27 Cal.Rptr.2d 800.)

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,[⁴] 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...