PEOPLE v. MASPER

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Court of Appeal, First District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Claude Christian MASPER, Defendant and Appellant.

No. A059721.

Decided: August 17, 1994

Karen W. Riley, Oakland, for appellant/defendant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Senior Asst. Atty. Gen., Sharon G. Birenbaum, and Michael E. Banister, Deputy Atty. Gen., San Francisco, for respondent/plaintiff.

Defendant was charged with stealing his girlfriend's car (Veh.Code, § 10851, subd. (a)).  In proceedings in municipal court, defendant declined the assistance of counsel and chose to represent himself.   He pled guilty to the charge, and the matter was certified to superior court for sentencing.   The superior court judge sentenced defendant to three years in state prison.   Defendant now appeals.

FACTS

The Offense

Defendant and the victim, Connie Hartert, had been dating for about a year when Ms. Hartert decided to end the relationship.   Defendant, however, continued to try to see Ms. Hartert, and his intrusive behavior led Hartert to call the Walnut Creek Police on February 22 and again on February 23, 1992, to have him removed from her apartment.   On February 26, 1992, Hartert obtained a temporary restraining order to keep defendant away from her apartment, but on February 27, about 11 p.m., defendant appeared at the apartment anyway.   He eventually left voluntarily, but the next morning about 5:30, Hartert discovered her car was gone.   Two days later, on March 1, 1992, defendant was arrested in Oakland in possession of Hartert's car, and he freely admitted taking it.

Waiver of Counsel

At his arraignment in municipal court on March 5, 1992, defendant declined to speak to the public defender and asked to represent himself.   The municipal court judge (Judge Gifford) asked defendant about his education, and defendant replied that he had received his Ph.D. in Europe.   Judge Gifford explained the effects of defendant's stated intention to plead guilty to the charge and the benefits of having an attorney to negotiate the plea.   Judge Gifford ultimately concluded that defendant's education and intelligence qualified him to represent himself.   Despite defendant's eagerness to plead guilty, Judge Gifford put the matter over for one day to allow defendant the opportunity to discuss his intended plea with the district attorney.

At his appearance the following day, defendant again asked to represent himself, and the municipal court judge (Judge Wheatley) inquired a little further into his background.

“THE COURT:  This is People versus Claude Masper, docket 359761.   Mr. Masper, when you last appeared in court you requested of the court that you be allowed to represent yourself and you refused an opportunity to discuss the matter with the Public Defender.   I take it that is still your position, is that correct?

“THE DEFENDANT:  Yes.   I want to defend myself.

“THE COURT:  How old are you?

“THE DEFENDANT:  37.

“THE COURT:  And where were you born?

“THE DEFENDANT:  France.

“THE COURT:  What part of France?

“THE DEFENDANT:  Nice, N-i-c-e.

“THE COURT:  Right.   And what's your educational background?

“THE DEFENDANT:  I have a pH D in Economy and Communication.

“THE COURT:  In Economics [a]nd [C]ommunications?

“THE DEFENDANT:  Right.

“THE COURT:  And you received that degree from where?

“THE DEFENDANT:  France.

“THE COURT:  What school?

“THE DEFENDANT:  Economies.

“THE COURT:  What?

“THE DEFENDANT:  Economies in France.

“THE COURT:  Did you get a degree?

“THE DEFENDANT:  Yes.

“THE COURT:  Isn't there on the degree the place where you received it from?

“THE DEFENDANT:  Aix en Provence․

“THE COURT:  How long was the course of study before you received your degree?

“THE DEFENDANT:  Eight years.

“THE COURT:  All right.   What has been your employment background?

“THE DEFENDANT:  I am an auditor since 15 years․

“THE COURT:  You work for what company or concern?

“THE DEFENDANT:  Advance Management Partner.

“MS. KENFIELD:  Partner.

“THE COURT:  This is where in France?

“THE DEFENDANT:  In France and Europe, Japan, all over the world.

“THE COURT:  How long have you lived in the United States?

“THE DEFENDANT:  One years.

“THE COURT:  What has been your source of employment since you lived in the United States?

“THE DEFENDANT:  My concerting [sic—consulting] and I am some fee from—

“THE COURT:  How long have you lived in the United States?

“THE DEFENDANT:  One year.

“THE COURT:  You have lived here?

“THE DEFENDANT:  I go back and forth.   I go back and forth in 15 years.   I go back and forth and I stay six months, eight or three months.   Sometime 15 days, depending on on [sic ] my business.

“THE COURT:  All right.   You have been charged with violating Section 10851 of the Vehicle Code, vehicle theft.   You have a right to be represented by an attorney at all stages of the proceedings.   If you cannot afford an attorney, the matter would be referred to the Public Defender.   I understand you have refused to talk with the Public Defender and you wish to represent yourself, is that correct?

“THE DEFENDANT:  That's correct.”

The court then accepted defendant's guilty plea.

Sentencing

Before the sentencing proceeding was held, defendant wrote a four-page letter to the superior court explaining his reasons for the crime (“reasons of my heart”) and his reasons for pleading guilty and declining an attorney (“reasons of my spirit”).   The probation report recommended a diagnostic study pursuant to Penal Code section 1203.03, and the superior court (Judge Golde) so ordered.   Upon completion of the evaluation period, Judge Golde sentenced defendant to three years in prison.

“THE COURT:  ․ The court has read and considered the report of the probation officer.  [¶] Anything further?

“[ANSWER]:  No, Judge.

“THE COURT:  The court finds the defendant to be a danger to the victim and others[.]  [¶] Probation is denied.  [¶] Do you waive formal arraignment for sentence?

“[ANSWER]:  Yes, your honor.1

“THE COURT:  The defendant having been convicted by a plea of guilty of the offense of a felony, to wit, a violation of section 10851 of the Vehicle Code, and probation having been denied, it is the judgment of this court, and it is hereby ordered, adjudged, and decreed that in punishment for said offense the defendant be imprisoned in the state prison of the State of California for a period of three years.

“The court fixes the aggravated term by virtue of the fact he was on court probation when he committed the offense, which probation was unsatisfactory.  [¶] He did not cooperate with the behavioral scientist at the Department of Corrections.

“Now, what's the time for credit?  [¶] I only have 32, but that's before he went to Vacaville.

“THE CLERK:  He is not your attorney, sir.

“THE COURT:  Get the computer, Lori.

“THE CLERK:  This may not show it.

“THE COURT:  That's all right;  I will figure it out.  [¶] I will give you credit for 122 actual, 61 Sage credits.   That should be it.

“THE DEFENDANT:  I would like to say something.

“THE COURT:  That's it.

“THE [DEFENDANT]:  I would like to have an attorney now.

“THE COURT:  Beg your pardon?

“THE DEFENDANT:  This is a sham.   There is nothing true in this report.  [¶] I request an attorney for this.   I will leave you this:  This is a sham.”

DISCUSSION

I. Lack of Inquiry as to Legal Cause Against Judgment

Penal Code section 1200 sets forth the procedure for arraignment for judgment:  “When the defendant appears for judgment he must be informed by the court, or by the clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.”

Defendant complains that the trial court failed to make the inquiry required by this statute as to whether there was any legal cause why judgment should not be pronounced.   The Attorney General concedes the omission but contends the ultimate question in this appeal is whether defendant effectively waived his right to counsel:  if he did, the error was waived by his failure to object to the procedure.   We do not agree with the Attorney General's contention that the error was waived, but we nevertheless find the error was harmless.

A. Failure to Object

There is no dispute that defendant was entitled, pursuant to Penal Code section 1200, to be asked whether there was legal cause why judgment should not be pronounced.   Some courts have found the trial court's error in failing to inquire about legal cause waived by the defendant's failure to object to the procedure.  (People v. Thomas (1955) 45 Cal.2d 433, 438–439, 290 P.2d 491;  People v. Nelson (1967) 257 Cal.App.2d 282, 285, 64 Cal.Rptr. 801;  People v. Straw (1962) 209 Cal.App.2d 565, 567, 26 Cal.Rptr. 461;  People v. Williams (1957) 155 Cal.App.2d 328, 333, 318 P.2d 106, cert. den. 356 U.S. 977, 78 S.Ct. 1142, 2 L.Ed.2d 1150;  People v. Rocha (1955) 130 Cal.App.2d 656, 663–664, 279 P.2d 836.)   In People v. Rocha, supra, the court explained:  “If there had been any facts which should have been taken into consideration by the court before disposing of the case it was incumbent upon defendant and his counsel to draw such facts to the court's attention.   They could have been considered, or a continuance granted, and the defendant could have been rearraigned.   This point cannot now be raised for the first time on appeal since there was no suggestion made in the trial court that the procedure differed in any respect from that prescribed by the code.”

In the present case, we decline to conclude that defendant waived the error.   As his attorney points out, defendant tried to address the court immediately after sentence was imposed.   Nevertheless, as discussed below, we conclude defendant was not prejudiced by the procedure.

B. Constitutional Considerations

At the outset, we reject defendant's assertion that he has been denied a constitutional right.   At common law, the defendant in a felony case was entitled to address the court before judgment was pronounced.  (6 Witkin and Epstein, Cal.Criminal Law (2d ed. 1989) Judgment and Attack in Trial Court § 3099, p. 3822.)   The Federal Rules of Criminal Procedure retain this “right of allocution” and continue to give the defendant a right to speak personally in his own behalf at sentencing.2  Although the Supreme Court has recognized the right of allocution as a vital part of the sentencing process (Green v. United States (1961) 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670), the court has also concluded that a sentencing judge's failure to ask a defendant if he had anything to say, although a violation of the federal rule, is not an error of constitutional dimension.  (Hill v. United States (1962) 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417.)

 In California the common law right of allocution has been supplanted by statute.  Penal Code section 1200 requires the trial court to ask the defendant whether he has any legal cause why judgment should not be pronounced.   We must conclude pursuant to Hill v. United States, supra, that the omission of this inquiry was not constitutional error.

 In addition to the inquiry provided by section 1200, Penal Code section 1204 gives the defendant the right to receive a hearing at which he may present evidence in mitigation of punishment or correct any inaccuracies in the probation report.  (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 725, 135 Cal.Rptr. 392, 557 P.2d 976;  In re Cortez (1971) 6 Cal.3d 78, 88, 98 Cal.Rptr. 307, 490 P.2d 819;  People v. Cross (1963) 213 Cal.App.2d 678, 684, 28 Cal.Rptr. 918.)   Contrary to the argument raised in a footnote to defendant's opening brief, defendant received that hearing here.   The sentencing judge announced that he had read and considered the probation report.   The court then asked, “Anything further?” but defendant remained silent.   Defendant made no attempt to introduce evidence or present argument on the appropriate punishment.3  Not until after judgment was pronounced did defendant assert that the sentencing reports were “a sham.”   The record supports the inference that any inaccuracies in the reports took on significance only when it became evident that defendant was facing a three-year prison term.  (See People v. Cross, supra, 213 Cal.App.2d at p. 684, 28 Cal.Rptr. 918.) 4  Defendant chose to represent himself.   The absence of a more extensive sentencing hearing was a product of that choice, not a failing by the sentencing court.5

C. No Prejudice

Penal Code section 1200 calls for a limited inquiry by the sentencing court:  whether there is legal cause why judgment should not be pronounced.   “Cause” is defined in Penal Code section 1201 and is confined to three grounds:  insanity;  reasons for a new trial;  or reasons for an arrest of judgment.  (In re Levi (1952) 39 Cal.2d 41, 45, 244 P.2d 403;  People v. Walker (1901) 132 Cal. 137, 140–141, 64 P. 133;  People v. Jung Qung Sing (1886) 70 Cal. 469, 471, 11 P. 755;  People v. Sanchez (1977) 72 Cal.App.3d 356, 359–360, fn. 4, 140 Cal.Rptr. 110;  People v. Hawthorne (1944) 63 Cal.App.2d 262, 265, 146 P.2d 517.) 6

The courts have consistently held that the absence of the inquiry as to legal cause called for by Penal Code section 1200 is harmless error if the defendant had no legal cause to put forth.  (People v. Billetts (1979) 89 Cal.App.3d 302, 310–311, 152 Cal.Rptr. 402;  People v. Sanchez, supra, 72 Cal.App.3d 356, 360, 140 Cal.Rptr. 110;  People v. Nelson, supra, 257 Cal.App.2d 282, 285, 64 Cal.Rptr. 801;  People v. Parga (1967) 249 Cal.App.2d 820, 821, 57 Cal.Rptr. 829;  People v. Rocha, supra, 130 Cal.App.2d 656, 663, 279 P.2d 836.)   The question before us, then, is whether defendant had any cause why judgment should not have been pronounced so as to to establish prejudice arising from the omission of the inquiry.

 In the present case, defendant raised no claim that he was insane.   Nor has defendant cited any defects in the pleadings which would provide grounds for an arrest of judgment (Pen.Code, § 1185).   And upon defendant's plea of guilty to the offense, a motion for new trial became unavailable.   (Pen.Code, § 1181;  People v. Grand (1971) 16 Cal.App.3d 27, 30, 93 Cal.Rptr. 658.)   Thus, defendant has made no showing that he had legal cause for not imposing judgment.  (People v. Hawthorne, supra, 63 Cal.App.2d at pp. 265–266, 146 P.2d 517.)

 Defendant contends that had he been invited to speak he would have challenged the contents of the sentencing reports and would have offered circumstances in mitigation of the sentence.   Yet, information pertinent to the issue of punishment does not constitute legal cause why judgment should not be pronounced.  (See People v. Sanchez, supra, 72 Cal.App.3d at p. 360, fn. 4, 140 Cal.Rptr. 110.)   If a defendant wishes to address the court in mitigation of sentence, his remedy is embodied in Penal Code section 1204, not section 1200.  (See People v. Cross, supra, 213 Cal.App.2d 678, 683–684, 28 Cal.Rptr. 918.)   As we have explained above, it is section 1204, not section 1200, that gives the defendant the right to present evidence in mitigation of punishment.

We acknowledge the scholarly review of the right of allocution undertaken by Division Five of this court in In re Shannon B. (1994) 22 Cal.App.4th 1235, 27 Cal.Rptr.2d 800.   However, we disagree with the court's conclusion in that case that Penal Code section 1200 gives the defendant, in conformity with the common law right of allocution, the right not only to assert the grounds stated in section 1201 but also to present information in mitigation of punishment.

As the Shannon B. court found, the common law right of allocution encompassed several elements, including the right to address the court personally, the right to assert grounds why judgment should not be pronounced, and the right to present information in mitigation of sentence.   The error in the Shannon B. court's analysis is its mistaken conclusion that Penal Code section 1200 perpetuates all three elements.   As we have already explained, the latter element—presentation of information on sentencing—is governed by Penal Code section 1204, which was adopted at the same time as section 1200.   There is no reason to read into section 1200 the matters governed by section 1204.7

Indeed, it strains the plain meaning of the statutory phrase “legal cause ․ why judgment should not be pronounced” to include circumstances relating to the sentence.   Information in mitigation of sentence might offer a ground why the judgment should be tempered with leniency, but it does not offer a reason why judgment should not be pronounced at all.

Finally, we note that the Shannon B. court ultimately concluded that the right of allocution did not apply to the juvenile defendant before it.   The court's analysis on the rights of adult offenders is, therefore, mere dicta, and we decline to follow it.

In sum, we conclude that defendant in the present case has made no showing that he has any legal cause to put forth why judgment should not have been pronounced.   Hence, on the record before us there is no likelihood that the outcome would have been different had the sentencing court made the inquiry called for by Penal Code section 1200.   As one court put it, “[I]t would be an idle act ․ to return [defendant] solely for the purpose of again pronouncing judgment.”  (People v. Henry (1948) 86 Cal.App.2d 785, 790, 195 P.2d 478.)   The error was harmless.

D. Lack of Counsel

 Defendant maintains that the trial court's omission of an inquiry as to legal cause can be harmless error only if the defendant was represented by counsel.   The contention finds no support in the case law.

People v. Skinner (1966) 241 Cal.App.2d 752, 50 Cal.Rptr. 867, upon which defendant relies, is distinguishable.   In Skinner the defendant was found guilty of marijuana possession after a trial by the court.   Judgment was suspended, and he was committed to the California Rehabilitation Center.   Several proceedings later, when defendant was returned for imposition of sentence, defendant appeared without counsel.   The appellate court found the trial court's failure to comply with the formalities of Penal Code section 1200 to be prejudicial because the defendant was not made aware that since judgment had not yet been pronounced he could have moved for a new trial.   In the present case, in contrast, defendant pled guilty.   He could not have moved for a new trial.  (People v. Grand, supra, 16 Cal.App.3d 27, 30, 93 Cal.Rptr. 658.)   Nor is there any suggestion that he could have shown other legal cause why judgment should not have been pronounced.   In these circumstances, the error was not prejudicial.8

In People v. Thomas, supra, 45 Cal.2d 433, 438, 290 P.2d 491, the Supreme Court drew a distinction between defendants represented by counsel and those deprived of counsel:  “[W]hile the requirement (Pen.Code, §§ 1200, 1201) that the question be asked is substantial and a failure to ask it is fatal to the judgment if defendant has been deprived of counsel [citation] it is not fatal where defendant is present and represented by counsel and no prejudice appears [citations].”   In the present case, however, it cannot be said that defendant was deprived of counsel.   He was informed of his right to counsel and he voluntarily waived that right by requesting to represent himself.  (Cf. In re Levi, supra, 39 Cal.2d 41, 45–47, 244 P.2d 403 [error was reversible where defendant was not informed of right to counsel].)

In re Grayson (1966) 242 Cal.App.2d 110, 114–115, 51 Cal.Rptr. 145, is on point.   There, as here, the defendant expressly waived his right to counsel.   The court found no reason to treat the case differently from those cases in which the defendant was represented by counsel.  “Omission of the inquiry as to legal cause required by Penal Code section 1200 is fatal to the judgment if the defendant has been deprived of counsel on the occasion of sentencing.  (In re Levi, 39 Cal.2d 41, 45 [244 P.2d 403];  People v. De Waele, 224 Cal.App.2d 512, 515 [36 Cal.Rptr. 825].)   If the defendant is represented by counsel or has made an effective waiver, omission of the inquiry is only an error of law, not necessarily prejudicial.  (People v. Thomas, 45 Cal.2d 433, 438 [290 P.2d 491];  People v. Straw, 209 Cal.App.2d 565, 567 [26 Cal.Rptr. 461].)   As pointed out in In re Turrieta, 54 Cal.2d 816, 820 [8 Cal.Rptr. 737, 356 P.2d 681], no infringement of the defendant's right to be represented at sentencing occurs when a valid waiver of counsel has taken place at an earlier stage of the proceedings.   The statement of an unrepresented defendant's right to counsel need not be repeated every time he comes to court;  generally, where a defendant has intelligently waived counsel he must take some affirmative steps to reinstate his right.  (In re Turrieta, supra, 54 Cal.2d at p. 821, 8 Cal.Rptr. 737, 356 P.2d 681.)   Petitioner makes no claim that he did not effectively waive counsel at the time of his arraignment and plea of guilty.   When he appeared later for sentence, the court was not required to ask him whether his waiver still held good.   Having elected to represent himself, petitioner was not entitled to privileges and indulgences greater than those provided to defendants represented by counsel.  (People v. Mattson, 51 Cal.2d 777, 794 [336 P.2d 937].)   His failure to object to the court's omission of the allocution was the product of his own choice, not the product of a denial of representation.”  (Emphasis added.)

We come, then, to the ultimate question in this case:  whether defendant effectively waived counsel.

II. Waiver of Counsel

A. Adequate Advice

 Defendant argues that his waiver of counsel was ineffective in that he was inadequately advised of the consequences of the waiver.   We cannot agree.

The Supreme Court has stated the requirements for obtaining a waiver of counsel as follows:  “A defendant seeking self-representation ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” ’  (Faretta [v. State of California], 422 U.S. [806] at p. 835, 95 S.Ct. [2525] at p. 2541 [45 L.Ed.2d 562, 582 (1975) ].)   The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.  [Citations.].”  (People v. Bloom (1989) 48 Cal.3d 1194, 1224–1225, 259 Cal.Rptr. 669, 774 P.2d 698, cert. den. (1990) 494 U.S. 1039, 110 S.Ct. 1503, 108 L.Ed.2d 638.)

Here, the record as a whole indicates that defendant was made aware of the dangers and disadvantages of self-representation.   Defendant made his intention clear early on that he wished to plead guilty.   At the proceeding on March 5, Judge Gifford explained to defendant the advantages of using an attorney to negotiate a plea.   Defendant nevertheless expressed his desire to represent himself, and Judge Gifford, after considering defendant's intelligence and education, found defendant qualified to do so.   The next day, another municipal court judge examined defendant's abilities and obtained defendant's express waiver of his rights to a jury trial.   We find no error.

B. Reconsideration

 Defendant further argues that prior to sentencing the superior court judge should have reconsidered defendant's waiver of counsel because there was reason to suspect defendant suffered from mental illness.   Specifically, defendant relies upon the following facts:  (1) the probation report called into question defendant's earlier statements of his education and employment history;  (2) defendant wrote a peculiar letter to the superior court;  and (3) the probation officer commented in the probation report that defendant seemed to have “emotional problems.”

Defendant relies upon the rule stated in People v. Burnett (1987) 188 Cal.App.3d 1314, 1319, 234 Cal.Rptr. 67, that “whenever a trial court has doubt as to the competence of a defendant to exercise the right of self-representation the court must undertake an exceedingly careful inquiry into the subject, ordinarily by ordering a psychiatric evaluation.”  (See also People v. Teron (1979) 23 Cal.3d 103, 114, 151 Cal.Rptr. 633, 588 P.2d 773, disapproved on other grounds in People v. Chadd (1981) 28 Cal.3d 739, 750, fn. 7, 170 Cal.Rptr. 798, 621 P.2d 837;  People v. Powell (1986) 180 Cal.App.3d 469, 478–481, 225 Cal.Rptr. 703.)

The Burnett case, however, is markedly distinguishable.   There, the defendant had been committed to a mental hospital upon a verdict of insanity, and he purported to waive counsel at the hearing to determine whether his sanity was restored.   The appellate court held the trial court should have conducted an inquiry into the defendant's capacity to waive counsel, especially in light of the defendant's history of mental illness and his bizarre and delusional statements in court.

Here, in contrast, there is nothing in the record sufficient to raise a doubt about defendant's capacity to waive counsel.   The fact that defendant may have exaggerated his education or employment experience does not negate Judge Gifford's finding that defendant was an intelligent, educated man.   Indeed the record reveals defendant to be literate and articulate.   Even defendant's letter to the court reiterated defendant's desire to represent himself.   Finally, the comments of the probation officer concerning defendant's “emotional problems” were directed to defendant's dangerousness, not to his competence to waive counsel.   The sentencing court followed the probation officer's recommendation and ordered a diagnostic evaluation.   The diagnostic study reveals defendant to be arrogant and uncooperative.   But there is nothing in the report to suggest incompetence to waive counsel.

The decision whether to act on intervening evidence and to reconsider the defendant's competence to waive counsel is a matter of discretion, and the trial court's ruling will not be disturbed on appeal absent an abuse of that discretion.  (People v. Clark (1992) 3 Cal.4th 41, 107, 10 Cal.Rptr.2d 554, cert. den. (1993) 507 U.S. 993, 113 S.Ct. 1604, 123 L.Ed.2d 166;  People v. Powell, supra, 180 Cal.App.3d at p. 481, 225 Cal.Rptr. 703.)   On the record before us, we find no abuse of discretion in the trial court's failure to reconsider defendant's competence to waive counsel.

The judgment is affirmed.

FOOTNOTES

1.   The record reflects that the first two responses were made by an attorney who was not defendant's attorney.   Although there is some question about the accuracy of the transcript, this opinion assumes the responses have been made as reported.   Defendant does not challenge the purported waiver of notice of the charge and his plea.

2.   Rule 32(a)(1) of the Federal Rules of Criminal Procedure provides in pertinent part:  “Before imposing sentence, the court shall ․ address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence.”

3.   Defendant does not contend that the attorney's unauthorized response to the court's question prevented defendant from speaking on his own behalf.

4.   In Hill v. United States, supra, 368 U.S. 424, 429, 82 S.Ct. 468, 472, the court noted that in the case before it the defendant made no claim that the sentencing judge was either misinformed or uninformed as to any relevant circumstances.   Indeed, a sentence based upon “materially untrue” information would implicate the due process clause.  (Townsend v. Burke (1948) 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690.)   In the present case, defendant has made no showing that the sentencing judge relied upon false information or assumptions.   In fact, the probation report listed two mitigating factors.   On the record before us, we must conclude that defendant was not deprived of due process.

5.   In Hill v. United States, supra, 368 U.S. 424, 429, 82 S.Ct. 468, 472, the Supreme Court left open the question whether a defendant who affirmatively asks the court to speak at sentencing has a constitutional right to do so.   In later cases, some federal appellate courts have concluded that principles of due process require that, upon request, a defendant be given a personal right to speak at sentencing.  (Boardman v. Estelle (9th Cir.1992) 957 F.2d 1523, 1530, cert. den. (1992) 506 U.S. 904, 113 S.Ct. 297, 121 L.Ed.2d 221;  Ashe v. State of N.C. (4th Cir.1978) 586 F.2d 334, cert. den. (1979) 441 U.S. 966, 99 S.Ct. 2416, 60 L.Ed.2d 1072.)   In the present case, we need not reach that issue, as defendant's request to speak came too late.

6.   Penal Code section 1191 sets forth parallel grounds for extending the time for pronouncing judgment:  the need for a determination of defendant's insanity or of a motion for new trial or of a motion in arrest of judgment.   In addition, section 1191 permits the time for pronouncing judgment to be extended for confinement in a diagnostic facility pursuant to Penal Code section 1203.03 or until proceedings for granting or denying probation have been disposed of.

7.   In the present case, as defendant represented himself, we have no occasion to decide whether sections 1200 or 1204 convey to a defendant represented by counsel the right to address the court personally.  (Compare People v. Sanchez, supra, 72 Cal.App.3d 356, 359, 140 Cal.Rptr. 110;  People v. Wiley (1976) 57 Cal.App.3d 149, 166, 129 Cal.Rptr. 13;  People v. Cross, supra, 213 Cal.App.2d 678, 682, 28 Cal.Rptr. 918, with In re Shannon B., supra, 22 Cal.App.4th 1235, 27 Cal.Rptr.2d 800.)

8.   In People v. Parga, supra, 249 Cal.App.2d 820, 821, 57 Cal.Rptr. 829, the court suggested that an inquiry as to legal cause may not be required after a plea of guilty.  (See also People v. Billetts, supra, 89 Cal.App.3d 302, 310–311, 152 Cal.Rptr. 402.)   It may be that the court had in mind the fact that upon a plea of guilty, the “legal cause” why judgment should not be pronounced is greatly diminished, for a motion for new trial is unavailable upon a plea of guilty.

DOSSEE, Associate Justice.

STRANKMAN, P.J., and NEWSOM, J., concur.

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