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Name: People v. Evans
Case #: S141357
Court: CA Supreme Court
District CalSup
Opinion Date: 07/24/2008

In a non-capital case, a criminal defendant’s right at sentencing to make a personal statement in mitigation is subject to the provisions of Penal Code section 1204 that requires that the statement be under oath and subject to cross-examination by the prosecution. Appellant was convicted at jury trial of receiving stolen property and the court found that he had served prior prison terms and that a prior “strike” conviction was true. At sentencing, pursuant to the requirement of Penal Code section 1200, the court queried as to whether there was any legal cause why sentence could not be pronounced, and defense counsel stated there was not and then argued for probation. As the court denied the request for probation, appellant asked if he could speak but the court responded, “No,” and imposed a prison sentence. Interpreting section 1200, the Supreme Court found that it applies only to whether there is legal cause against the pronouncement of sentence. Although a defendant may address the court at the sentencing hearing, his right to testify is governed by section 1204 which allows a defendant to call witnesses to testify, including himself, but the testimony of such witnesses must be under oath and subject to cross examination. (Disapproving In re Shannon B. (1994) 22 Cal.App.4th 1235.) The court did not address whether the right to testify in mitigation of punishment is a right personal to a defendant or one that may be made by counsel.