P. v. Olive

Filed 8/7/09 P. v. Olive CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore, Judge. Affirmed.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Daniel Rogers and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Alfonso Carnell Olive appeals following a guilty plea. He seeks a remand for resentencing, because he claims the trial court did not follow the procedural requirements in Penal Code section 1200.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to a written plea agreement, defendant pled guilty on May 30, 2008, to assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)),^[1]and admitted the allegation that he personally inflicted great bodily injury on a victim under the age of five years ( 12022.7, subd. (d)). The victim was the four-year-old son of defendants girlfriend, who died as a result of the assault. Defendants girlfriend left the boy in defendants care while she went to work.^[2] On July 18, 2008, the court followed the plea agreement and sentenced defendant to a total of seven years in prison. To reach the total, the court imposed the middle term of three years for the assault by means likely to produce great bodily injury and added a consecutive four-year term for the great bodily injury enhancement.

DISCUSSION

Defendant contends his case should be remanded for resentencing because he was not provided with a reasonable opportunity to personally address the court at the time he was sentenced. He argues we should remand his case for resentencing so he can make a statement in mitigation of punishment as provided in section 1204. Citing People v. Evans (2008) 44 Cal.4th 590 (Evans), defendant essentially concedes he forfeited any opportunity he might have had to make a statement in mitigation under section 1204, because his counsel made no such request in the trial court. However, he argues his forfeiture should be excused because the trial court did not comply with the procedural requirements in section 1200. Defendants argument lacks merit.

Section 1200 states in part as follows: 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. [S]ection 1200 does not entitle the defendant, in response to the trial courts allocution, to offer a personal statement in mitigation of punishment. (Evans, supra, 44 Cal.4th at p. 597.) If the court omits the question, the error is not reversible unless there is prejudice. (People v. Straw (1962) 209 Cal.App.2d 565, 567.) There is no prejudice from a trial courts failure to comply with section 1200 when the defendant pleads guilty and is represented by counsel at the time of sentencing. (People v. Billetts (1979) 89 Cal.App.3d 302, 310-311.)

Section 1204 states that: The circumstances [in aggravation or mitigation of punishment] shall be presented by the testimony of witnesses examined in open court, . . . 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 defendants counsel on behalf of a defendant if such a report presents a study of his background and personality and suggests a rehabilitation program. In other words, 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.)

A trial court has great discretion to exclude evidence that would necessitate undue consumption of time (Evid. Code, 352). Thus, the court may refuse to hear evidence pertaining to peripherally relevant matters that will not affect the courts exercise of its sentencing discretion, or testimony that merely restates information contained in the defendants statements to the probation officer. [Citation.] (Evans, supra, 44 Cal.4th at p. 599.) A trial courts erroneous exclusion of defense evidence is subject to harmless error analysis. (People v. Robinson (2005) 37 Cal.4th 592, 627.) In addition, pursuant to our Supreme Courts recent decision in Evans, any right a defendant may have to offer testimony in mitigation under section 1204 is forfeited if the defendant and/or his counsel do not attempt to call defendant to testify under oath before the court begins to pronounce sentence. (Evans, supra, 44 Cal.4th at p. 600.)

During the sentencing hearing on July 18, 2008, the court first said, [W]ere on for sentencing this morning. [] Waive arraignment for sentencing? Defense counsel responded, Yes, your Honor. The court then asked, No legal cause? As defendant acknowledges, this was a shorthand way of asking whether there was any legal cause why judgment should not be pronounced. In response, defense counsel said, No. The court then indicated it had reviewed the probation report and asked whether counsel wished to be heard regarding the findings or recommendations in the report? Defense counsel objected to the probation report because it claimed defendant made inconsistent statements to police during the investigation. Defense counsel said, Our position has always been that he was not inconsistent and had told the truth from the very beginning, and it was very consistent. The court declined to modify the probation report and then asked whether there was [a]nything else regarding the findings or recommendations? Counsel stated a further objection to the extent the probation report suggested defendant did not have any feelings of remorse for the child. Counsel said, [T]heres not a day that has gone by since this incident that [defendant] has not felt for the child in this case, the victim. And we would submit on that. The court proceeded to consider some victim impact statements and to pronounce sentence. At no time during the hearing did counsel request or in any way indicate defendant wished to make a personal statement in mitigation under oath.

In our view, the courts question, No legal cause?, was enough to satisfy section 1200. Defendant was represented by counsel who obviously understood what the court was asking. Nor does the courts shorthand provide a reasonable basis for excusing defendants failure to make a request under section 1204 to provide the court with testimony in mitigation of his punishment. Even if we could conclude there was a basis for determining the trial courts shorthand in some way erroneously precluded defendant from presenting testimony in mitigation, defendant would be unable to show prejudice. Defendant made a statement in mitigation to the probation officer, which was included in the probation report and considered by the court. The court considered defendants objections to the probation report prior to pronouncing the sentence. Defendant pled guilty in exchange for a specific sentence of seven years in state prison, and the court followed the plea agreement.^[3] Accordingly, based on the record before us, our Supreme Courts decision in Evans is controlling. Pursuant to Evans, defendant forfeited any right he may have had under section 1204 to present testimony in mitigation when he failed to make a request to do so before the trial court began to pronounce sentence.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

HOLLENHORST

J.

MILLER

J.

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^[1] All further statutory references are to the Penal Code unless otherwise stated.

^[2] The lengthy procedural record and the details of the offense are not relevant to the issues raised on appeal.

^[3] On appeal, defendants are estopped from complaining of sentences to which they agreed. (People v. Hester (2000) 22 Cal.4th 290, 295). This is because defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. (Ibid.)