(J)

Violation of the Right of Allocution.   Allocution is the common law right of a prisoner to speak on his own behalf at the time of sentencing.[205]  Recognized as early as 1689, this right guarantees the defendant the opportunity to make a plea personally in his own behalf and to present to the court in mitigation of punishment any information that could not otherwise have been admitted during the trial.[206] 

 

            The right of allocution is recognized in California by statute.[207]  It is recognized in many jurisdictions by judicial decision,[208] and is mandatory as a matter of federal law.[209]

           

In Boardman v. Estelle,[210] the Circuit Court found that federal constitutional due process requires a sentencing court to permit a defendant personally to address the court on request prior to imposition of sentence.  Likewise, in In re Karagozian,[211] the court reversed a contempt sentence on due process grounds.  Thus, in both federal and state courts in California, there is a strong argument that the right to allocution is constitutionally based.

[205] See Barrett, Allocution, 9 Mo. L. Rev. 115 (1944) for a general history of the common law right of allocution. 

[206] See generally, Annotation, Necessity and Sufficiency of Question to Defendant as to Whether he has Anything to Say why Sentence Should not be Pronounced Against Him, 96 A.L.R.2d 1292 (1964); Note, Right of Defendant to Make Statement Before Sentencing, 35 Tul. L. Rev. 831 (1961).

[207] Penal Code § 1200.

[208] See Annotation, supra; e.g., State v. Fettis, 664 P.2d 208 (1983) (alternative holding). 

[209] F. R. Crim. Pro. 32(a)(1).

[210] Boardman v. Estelle, 957 F.2d 1523 (9th Cir. 1992).

[211] In re Karagozian (1975) 44 Cal.App.3d 516, 522, 118 Cal.Rptr. 793, 796.

Ninth Circuit

SENTENCE " GROUNDS " APPRENDI ERROR IN SENTENCING DEFENDANT UNDER THREE STRIKES LAW ON THE BASIS OF FACTS IN THE PRIOR CASE THAT WERE NOT FOUND TRUE BY A JURY OR ADMITTED AS TRUE BY THE DEFENDANT
Wilson v. Knowles, ___ F.3d ___, 2011 WL 383961 (9th Cir. Feb. 8, 2011)(habeas corpus granted, vacating Three Strikes sentence imposed in violation of petitioner's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000), where sentencing court imposed the sentence on the basis of three facts in the prior case that were not found true by a jury or admitted as true by the defendant).

SENTENCE " GROUNDS " APPRENDI ERROR IN SENTENCING DEFENDANT UNDER THREE STRIKES LAW ON THE BASIS OF FACTS IN THE PRIOR CASE THAT WERE NOT FOUND TRUE BY A JURY OR ADMITTED AS TRUE BY THE DEFENDANT
Wilson v. Knowles, ___ F.3d ___, 2011 WL 383961 (9th Cir. Feb. 8, 2011)(habeas corpus granted, vacating Three Strikes sentence imposed in violation of petitioner's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000), where sentencing court imposed the sentence on the basis of three facts in the prior case that were not found true by a jury or admitted as true by the defendant).

SENTENCE " GROUNDS " APPRENDI ERROR IN SENTENCING DEFENDANT UNDER THREE STRIKES LAW ON THE BASIS OF FACTS IN THE PRIOR CASE THAT WERE NOT FOUND TRUE BY A JURY OR ADMITTED AS TRUE BY THE DEFENDANT
Wilson v. Knowles, 631 F.3d 1295, 2011 WL 383961 (9th Cir. Feb. 8, 2011)(habeas corpus granted, vacating Three Strikes sentence imposed in violation of petitioner's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000), where sentencing court imposed the sentence on the basis of three facts in the prior case that were not found true by a jury or admitted as true by the defendant).

Other

CAL POST CON " PLEA BARGAINING " JUDICIAL INVOLVEMENT
People v. Clancey, 202 Cal.App.4th 790 (Cal.App. Jan. 10, 2012) (trial court's offered sentence was not proper because it was: 1) conditioned on the defendant pleading to all counts and admitting all allegations, and 2) operated as a commitment by the judge to impose the offered sentence or to allow the defendant to withdraw the pleas and admissions).