Metropolitan News-Enterprise


Monday, January 4, 2021


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Justice Stanley Mosk’s Abhorrence of Sentences for ‘Ghosts’ Again Rejected

Court of Appeal Panel Upholds 105-Years-to-Life Sentence


By a MetNews Staff Writer


Div. Three of the Fourth District Court of Appeal has affirmed an indeterminate sentence of 105-years-to-life imposed on a father who sexually abused his daughter, rejecting the view, as other courts have, expressed by the late California Supreme Court Justice Stanley Mosk that sentences which exceed the conceivable limits of a human life are an absurdity and defy constitutional scrutiny.

The abuse occurred over the span of a decade, when the girl, “L.D,” was ages seven to 17.

Wednesday’s unpublished opinion, authored by Justice Richard M. Aronson, upholds a judgment by Orange Superior Court Judge Cheri T. Pham. It notes that defendant Jose Lorenzo Diaz-Garcia’s “sole authority” for the proposition that his sentence is excessive is comprised of Mosk’s 1993 dissenting opinion in People v. Hicks and his 1998 concurring opinion in People v. Deloza.

Aronson noted:

“No other justice joined in Justice Mosk’s dissent in Hicks or his concurrence in Deloza, rendering his opinions in those cases of no precedential value.”

Equivalent of LWOP

He remarked:

“[T]he practical effect of Diaz-Garcia’s sentence in this matter is that he received the functional equivalent of a sentence of life without possibility of parole….And imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution or the federal Constitution….Diaz-Garcia provides no case that has found a sentence constitutes cruel and unusual punishment merely because it exceeded the possible lifetime of an adult offender. Nor have we found one.”

The jurist went on to say:

“The goals of criminal punishment include vindication of society’s sense of justice, protecting society from criminal harms, and deterring criminal behavior….Here, Diaz-Garcia’s repeated, long-term, predatory sexual assaults affected L.D. at an extremely vulnerable time in her life, leading to lifelong consequences for her. The sentence imposed for Diaz-Garcia’s decade-long series of heinous crimes, inflicted on the most vulnerable of victims—his own daughter—reflects society’s most severe condemnation of such offenses, provides an equally strong deterrent message, and ensures he will never have an opportunity to reoffend.”

The case is People v. Diaz-Garcia, G058281

Mosk’s 1993 Opinion

Mosk, who died in 2001 after 37 years on the state’s high court, said in his dissent in Hicks:

“It is my opinion that many criminal sentences have crossed the bounds of reason in this state.”

He noted that a sentence such as the one at hand—an 80-year term in prison, to which, the majority held, a three-year term should have been added—is one “that cannot possibly be completed in the defendant’s lifetime,” asserting that it “makes a mockery of the law and amounts to cruel or unusual punishment….”

Nothing is to be gained, he remarked, in assuring “that defendant’s ghost serves an additional three years in confinement—three years more than the eighty he is now ordered to serve,” declaring:

“There is a point at which enough is enough.”

1998 Elaboration

In Deloza, Mosk pointed to a 1996 unpublished Oklahoma appellate court opinion upholding a 30,000-year sentence. He wrote:

“What is the legal difference between prison sentences of 30,000 years and 111 years? The answer is: none. Both are impossible for a human being to serve.

“If a trial court were to impose as a condition of probation that a defendant report to his probation officer once a week for 111 years, an appellate court would not hesitate to strike it down as impossible to meet. How then could it sustain a prison sentence of that length?”

Hinting at, but not explicitly putting forth, a substantive due process basis for his position, Mosk said:

“A grossly excessive sentence can serve no rational legislative purpose, under either a retributive or a utilitarian theory of punishment. It is gratuitously extreme and demeans the government inflicting it as well as the individual on whom it is inflicted. Such a sentence makes no measurable contribution to acceptable goals of punishment.”

Mosk, a former state attorney general, suggested:

“What, then, is the answer if a defendant is convicted of numerous counts? The maximum sentence that should be imposed is one a defendant is able to serve: life imprisonment. In a particularly egregious case involving exceptionally numerous victims, the maximum could conceivably be life imprisonment without possibility of parole.”

Appellate Courts’ Reactions

No California court has adopted Mosk’s view, and several unpublished opinions have expressly rejected it.

However, then-Sixth District Court of Appeal Presiding Justice Conrad Rushing said in an Aug. 23, 2004 concurring and dissenting opinion in People v. McGhee, which was not certified for publication, that “the 250-year sentence” being affirmed “challenges good sense,” commenting:

“All we, as courts, have ever had is the respect of the citizenry. When we erode that respect, we diminish our importance as an equal branch of government. Therefore I agree with Justice Mosk’s dissent in People v. Hicks….

On Dec. 6, 2001, Div. Five of this district’s Court of Appeal, in an unpublished opinion in People v. Aranda by Stanley Mosk’s son—Justice Richard Mosk (since deceased), cited the dissent in Hicks in observing, in a case in which an inmate gained a single additional day of presentence custody credit:

“We have now allowed ‘defendant’s ghost’ an additional day, for the State permits sentences that extend past a defendant’s possible lifetime, an arguably nonsensical practice.”

Appellate courts continue to uphold sentences exceeding a defendant’s conceivable life span, in opinions such as that handed down April 6 by the Fourth District’s Div. One in People v. Williams affirming a judgment imposing a sentence of 100 years to life plus 86 years two months. Review in that case was granted by California Supreme Court but not on the issue of the permissibility of the sentence.


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