Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS042130.
Mihara, J.
The sole issue on appeal is whether defendant Luis Fernando Mendoza was improperly deprived of his right of allocution at his sentencing hearing. We conclude that defendant forfeited his right to testify at this hearing by failing to make a timely request to do so. Accordingly, we affirm the judgment.
I. Statement of the Case
On September 13, 2004, defendant pleaded guilty to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted that he was armed with a firearm (Pen. Code, § 12022, subd. (c)). The trial court suspended imposition of sentence and placed defendant on probation for five years.
On November 8, 2005, defendant admitted that he had violated probation by testing positive for methamphetamine. The trial court imposed a seven-year prison term. The trial court then suspended execution of sentence and reinstated probation on condition that defendant serve one year in county jail.
On March 28, 2007, defendant admitted that he had violated probation when he was arrested for possession of stolen property in another county. The trial court sentenced defendant to prison for seven years.
II. Statement of Facts
A. Transportation of Methamphetamine
On July 29, 2004, a deputy sheriff stopped the vehicle that defendant was driving because it did not have a front license plate. After learning that defendant was on probation, the deputy found methamphetamine in his pocket and a .22 caliber handgun in the vehicle.
B. Probation Violation
On November 17, 2006, copper wire was stolen from a vacant home. The police pursued the vehicle into which the copper wire was placed, and eventually stopped defendant’s truck. Defendant admitted that he had taken the copper wire.
III. Discussion
Defendant contends that he was deprived of his statutory and constitutional due process rights when the trial court refused to allow him to address the court at his sentencing hearing.
At the sentencing hearing, the prosecutor focused on defendant’s criminal history, that is, his use of a weapon, the transportation of a large amount of methamphetamine, and “ongoing criminal behavior out of county,” and asked the trial court to impose a prison term. In response, defense counsel pointed out that the trial court had previously indicated that “it would be receptive to keeping Mr. Mendoza on probation, if the reasons for this theft could be explained by something other than alcohol or substance abuse.” Noting that defendant stole the copper wire to provide for his family, he urged the trial court to continue defendant on probation.
After defense counsel submitted the matter, the trial court stated: “He has not, in any way, gotten himself away from the life of crime. You’re right, the underlying event here was quite serious, where he struggled with an officer, had to be pepper sprayed. They find a gun, and he’s given an opportunity to not go to prison. And then, he continues to go in further criminality of theft. And this was not exactly simply an opportunistic thing going on here for a person who’s got seven years in prison hanging over his head. He looks for a vacant house, removes the wire. He uses rifle scopes to check out the property to make sure nobody is around. His last statement, in the last report was, Why does he have guns? Well, he likes them. I like -- he likes guns. Makes him happy to hear the noise they make. And here he is with a rifle scope. Don’t know whether he’s got a gun. He better not have had one. [¶] THE DEFENDANT MENDOZA: Judge, I’m sorry, would the Court hear from Mr. Mendoza? [¶] THE COURT: No, I will not. [¶] This is his second documented violation. He’s been afforded the opportunity to complete two outpatient programs and numerous other opportunities to successfully complete a grant of probation. He hasn’t done so. He was aware that he had a seven-year state prison sentence suspended, and he continued to violate the law. Enough is enough. [¶] For the 11379, he’s sentenced to the middle term of three years in state prison; consecutive thereto, for the 12022(c), is an additional four years in state prison, both of which were previously imposed, for a total fixed term of seven years in state prison.”
In People v. Evans (2008) 44 Cal.4th 590 (Evans), our Supreme Court recently held that “California law gives a defendant the right to make a personal statement in mitigation of punishment but only while under oath and subject to cross-examination by the prosecutor.” (Id. at pp. 592-593.) The court held, however, that the defendant had forfeited this right. (Id. at p. 600.)
Defendant argues that Evans is factually distinguishable from the present case, because he requested to be heard before the trial court pronounced judgment. Thus, he claims that he did not forfeit his right to testify in mitigation. We conclude, however, that Evans is controlling.
In Evans, the court summarized the facts of that case and concluded that the defendant’s request was untimely: “Just before pronouncing sentence, the trial court inquired, ‘With that, the matter’s submitted, correct?’ Defense counsel replied, ‘Submitted.’ Defense counsel made no attempt to call defendant to testify, and defendant himself did not ask to do so. Under these circumstances, there was a forfeiture of defendant’s right to testify in mitigation of punishment.” (Evans, supra, 44 Cal.4th at p. 600.) The court then noted that the defendant asked to speak “after the trial court had denied probation and was in the process of sentencing defendant to prison.” (Ibid.) The court concluded that the defendant’s request “came too late; it should have been made before the court started to pronounce defendant’s sentence.” (Ibid.)
The Evans court assumed, as does this court, that the defendant’s request to speak was a request to testify in mitigation of punishment. (Evans, supra, 44 Cal.4th at p. 600.)
Similarly, here, defendant failed to make a timely request. As in Evans, after defense counsel submitted the matter, defense counsel did not call defendant to testify and defendant did not ask to do so until after the trial court had begun to pronounce judgment at the sentencing hearing. Under Evans, it was at this point that defendant forfeited his right to testify. Accordingly, the trial court did not err in not allowing defendant to testify at his sentencing hearing.
IV. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Premo, J.