California Court of Appeal Jan 30, 2014 No. D063259Unpublished
Filed 1/30/14 P. v. Johnson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063259
Plaintiff and Respondent,
v. (Super. Ct. No. SCS258692)
RODERICK JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kathleen
M. Lewis, Judge. Affirmed.
Laurel M. Nelson, under appointment by the Court of Appeal for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Sabrina Y.
Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Roderick Johnson pleaded guilty to corporal injury on his girlfriend resulting in a
traumatic condition. The trial court sentenced him to the middle term of three years in
prison. He appeals, contending his sentence should be reversed because: (1) the trial
court improperly relied on the victim's unsworn statements at the sentencing hearing and
to the probation officer; and (2) the trial court denied him his right to allocution and to
People v. Watson (1956) 46 Cal.2d 818, 836.) He argues that a more favorable result was
probable because, if given the opportunity, he would have contradicted Stevens's
statements. Johnson, however, forfeited his right to testify in mitigation of punishment
by failing to make that request before the court commenced imposing his sentence. (See
post, pt. II.B.)
II. Right to Allocution and to Present Mitigating Evidence
Johnson argues the trial court denied him his right to allocution and to present
evidence contradicting Stevens's unsworn allegations, some of which contradicted her
testimony at the preliminary hearing. We reject these arguments.
A. Allocution
Allocution is an old concept, which generally refers to the court's duty to inquire
whether there is any reason why judgment should not be pronounced. (People v. Evans
(2008) 44 Cal.4th 590, 592-593 (Evans).) The statutory allocution process in California
does not provide an opportunity for the defendant to make a personal statement in
mitigation of punishment. (Id. at pp. 597-598.) Rather, the right of allocution is limited.
8
A defendant may address only two things: insanity or good cause to arrest judgment or
for a new trial. (§ 1201.)
Here, the trial court did not specifically inquire as to whether there was a reason
why judgment should not be pronounced. However, after Stevens made her statement at
the sentencing hearing, the trial court received arguments from the district attorney and
defense counsel. Defense counsel never stated there was a reason as to why judgment
should not be pronounced. Instead, he only argued for a lesser punishment. When "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." (Evans, supra, 44 Cal.4th at p. 597.)
Although the trial court did not expressly inquire whether there were reasons why
judgment should not be pronounced, we find any error harmless because Johnson did not
argue in the court below or on appeal that there were proper bases for judgment not to be
pronounced. Specifically, he does not claim that he was insane or that there was good
cause to arrest judgment or for a new trial. (§ 1201.) Rather, he claims the judgment was
based on materially false information, namely Stevens's unsworn statements. This
argument does not pertain to Johnson's right to allocution, but instead to his right to make
a statement in mitigation of punishment.
9
B. Statement in Mitigation
A defendant in a noncapital case has a "right at sentencing to make a sworn
personal statement in mitigation that is subject to cross-examination by the prosecution."
(Evans, supra, 44 Cal.4th at p. 600, italics deleted.) To the extent a defendant wishes to
make a statement in mitigation of punishment, he or she must make that request before
the court pronounces sentence. (Ibid.)
Here, the court started to impose sentence by stating that Johnson was
presumptively ineligible for probation. It then went on to discuss the circumstances of
the crime and its concern that Johnson still wants to be with Stevens. It was only at that
point that Johnson asked to speak. Even assuming that this may be considered as a
request to testify in mitigation of punishment, it was too late. Johnson was required to
make the request before the court started to pronounce his sentence. (Evans, supra, 44
Cal.4th at p. 600.)
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
10
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's sentence, holding that the trial court properly considered victim impact statements and that the defendant failed to timely assert his right to present evidence in mitigation or demonstrate prejudice from the sentencing process.
Issues
Whether the trial court erred by relying on the victim's unsworn statements at sentencing.
Whether the trial court denied the defendant his right to allocution.
Whether the trial court denied the defendant his right to present evidence in mitigation of punishment.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“[S]ection 1204 applies only to evidence of mitigating and aggravating factors, not generic victim statements.”
“The statutory allocution process in California does not provide an opportunity for the defendant to make a personal statement in mitigation of punishment.”
“To the extent a defendant wishes to make a statement in mitigation of punishment, he or she must make that request before the court pronounces sentence.”