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Name: People v. Nitschmann
Case #: B210291
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 03/03/2010

Although a defendant has a right of allocution prior to sentencing, the judge has no sua sponte duty to offer the defendant allocution and defendant forfeits the right if he does not offer to testify.
Appellant, a defendant with a lengthy record of criminal conduct, entered into a plea bargain whereby he pled guilty to assault likely to produce great bodily injury and admitted an infliction-of-personal injury enhancement, in exchange for a promise by the court of a five-year prison sentence. At the change of plea hearing, appellant agreed no other promises had been made him, stipulated to a factual basis based on police reports “lodged” with the trial court, waived completion of a probation report, and requested immediate sentencing, which he received. On appeal, he now complains that he was not given his right of allocution at sentencing. Although Penal Code section 1200 holds that a defendant must be asked if he has any legal cause why judgment should not be pronounced, it does not give a defendant a right to make a personal mitigating statement. Penal Code section 1204 does provide such a right, but the statement must be made under oath and subject to cross-examination. Here, because defense counsel made no attempt to call defendant to testify, and defendant himself did not ask to do so, defendant forfeited the right. Regardless, because the reasonable interpretation of the court’s five year promise was for a stipulated sentence, any error was harmless. Appellant also complained that the trial court failed to obtain a statement of factual basis before accepting the plea. But appellant’s written plea form stated that the court could consider police reports lodged with the court and a probation department time credit memo filed with the court post sentence provided an adequate statement of factual basis. Thus, any error in the timing of the factual basis was harmless as the record reflected an adequate factual basis for the plea inquiry.