I concur in the judgment, but feel impelled to discuss one issue at greater length.
The United States Supreme Court, in a federal rule context, has emphasized “the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” (Green v. United States (1961) 365 U.S. 301, 304 [5 L.Ed.2d 670, 673, 81 S.Ct. 653].)
The right of a defendant to speak for himself has origins in the common law as far back as 1689. This is known as allocution,1 and is recognized in virtually every jurisdiction by the usual practice of the sentencing judge asking the defendant if he has any legal cause why sentence should not be pronounced. In some states the inquiry is required by law, in federal courts by rule. (Fed. Rules Crim. Proc., rule 32 (a)(1).)
The problem we face here is whether that right of allocution applies in the penalty phase of a capital case. In the ordinary criminal case, the jury determines guilt but the judge imposes sentence. At that time he permits the defendant to personally address him on the issue of punishment. (Pen. Code, § 1200.) In a capital case, however, the jury not only finds guilt but also determines punishment, i.e., whether the defendant is to live or die. Should the defendant be allowed to personally address the jury before it reflects on the appropriate penalty? There is a paucity of authority on the subject.
In State v. Jeffries (1986) 105 Wn.2d 398 [717 P.2d 722, 739], it appears that the defendant “made an allocution to the jury” in the penalty phase of a capital case. As indicated in the opinion, he neither admitted his guilt nor asked for mercy. His only offered mitigation was his skill at wood carving. Yet that could have been a factor in the jury’s consideration of whether his life should be spared. In State v. Mak (1986) 105 Wn.2d 692 [718 P.2d 407, 430], it was revealed that the “defendant was given his right to speak to the jury at the sentencing hearing without being required to take an oath
The right of the defendant to speak before sentence is determined has been upheld in a number of jurisdictions. (See, e.g., Tomlinson v. State *892(1982) 98 N.M. 213 [647 P.2d 415]; Sellman v. State (1981) 47 Md.App. 510 [423 A.2d 974]; State v. Nicoletti (R.I. 1984) 471 A.2d 613; Mohn v. State (Alaska 1978) 584 P.2d 40; People v. Emig (1972) 177 Colo. 174 [493 P.2d 368].) It has been held discretionary in other jurisdictions. (E.g., State v. Burkhart (Tenn. 1976) 541 S.W.2d 365; Wilson v. State (1947) 76 Ga.App. 257 [45 S.E.2d 709]; Patterson v. State (1926) 21 Ala.App. 357 [108 So. 265]; State v. Townley (1921) 149 Minn. 5 [182 N.W. 773].)
A thoughtful commentary on the Tomlinson case is helpful since the procedures in New Mexico parallel ours in California: “Tomlinson holds, however, that allocution is not limited to the assertion of legal bars to the imposition of a sentence. Instead, it provides the accused an opportunity to participate in the sentencing process by making a personal pleá for mitigation of punishment. Because the jury, at the option of the accused, may set punishment in New Mexico death penalty prosecutions, the logic of Tomlinson and its historical review of the right in New Mexico jurisprudence establish that the right of allocution entitles the defendant to make his personal statement or plea to the jury which will decide his fate. The jury bases its decision on a weighing of the aggravating and mitigating circumstances proved in the case and considers the defendant and the crime in making its decision, yet always retains authority to impose á life sentence despite the results of the weighing process. Thus, New Mexico law appears to require that the accused be allowed to make some type of personal statement or plea to the jury which will decide whether he will be sentenced to death. This requirement is necessary if the right of allocution is to be meaningfully applied in capital sentencing proceedings.” (Sullivan, The Capital Defendant’s Right to Make a Personal Plea for Mercy (1985) 15 N.M. L.Rev. 41, 60, fn. omitted.)
Sullivan points out that “Avoidance of the death penalty may rest largely on the jury’s perception of the character and personal history of the defendant. Thus, an important aspect of the right to present mitigating evidence lies in the defense’s ability to present the defendant to the jury in human terms ... by affording the defendant the opportunity to address the jury and offer personal reasons why it should impose a life sentence .... Once the accused elects to have the jury set his punishment, his plea should be made to the jury prior to its deliberations and not to the trial court, which merely pronounces sentence after the jury returns the verdict. The plea will likely prove an important factor in the jury’s evaluation of the accused and appropriateness of capital punishment in his case.” (Id., at pp. 56, 60-61)
Lest it be feared by prosecutors that the defendant’s right of allocution will inevitably result in a life rather than death sentence, I suggest there are numerous pitfalls for the defendant. In most capital cases the defendant is *893uneducated or inarticulate; his persuasive ability will be limited. If he admits his crime after having denied it in the guilt phase, he will be perceived by the jury to be an expedient liar. If he fails to demonstrate believable remorse his presentation to the jury will probably be futile. And finally, the personality of a convicted murderer is more likely to be perceived as negative rather than attractive.
On the other hand, if the defendant can indicate some constructive worth to his life and activities, if he can reveal family devotion, if he can discuss deprived childhood and parental neglect, if he can convincingly promise good behavior in prison, he just may evoke the type of sympathy that the jury is authorized to consider.
In 3 LaFave, Criminal Procedure (1984) pages 118-119, it was noted that “Though it has been held that ‘the failure to accord allocution to a defendant represented by counsel is not an error of constitutional dimension,’ the Supreme Court has not yet decided whether silencing a defendant who wished to speak would be constitutionally impermissible.”
On two occasions this defendant requested, through counsel, that he be permitted to address the jury before they began penalty deliberations. The trial court denied the request apparently as a matter of discretion. Under the current state of the law in California—or, more accurately, in the absence of any controlling statutory or case law—I cannot fault the trial judge for this exercise of his discretion. On the other hand the procedure is not unknown here in California. Though represented by counsel, defendant Charles Edward Moore was permitted to make his personal plea to the jury in a capital case. His automatic appeal is pending in this court. (People v. Charles Edward Moore, Crim. No. 23721.)
However, this may be an appropriate subject for the Legislature to consider in the future, i.e., whether allocution should be a matter of right in a capital case, whether it should be prohibited because defendant has counsel to speak for him, or whether it should be subject to the discretion of the trial judge and if so whether some standards should be provided for the exercise of discretion.
Appellant’s petition for a rehearing was denied August 18, 1988.
Allocution is defined as the “Formality of court’s inquiry of prisoner as to whether he has any legal cause to show why judgment should not be pronounced against him on verdict of conviction.” (Black’s Law Dict. (5th ed. 1983) p. 39.)