Tooby's California Post-Conviction Relief for Immigrants

(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.