Capitol Alert

An unhappy court upholds Schwarzenegger reduction of Núñez prison sentence

The way former Gov. Arnold Schwarzenegger handled his drastic reduction of Esteban Nunez’s prison sentence was not illegal but could be seen as “grossly unjust,” a Sacramento appellate court ruled Tuesday.

Nunez, son of former Assembly Speaker Fabian Nunez, pleaded guilty to voluntary manslaughter stemming from the stabbing death of Mesa College student Luis Santos after Nunez and his friends had been turned away from a party near the campus of California State University, San Diego, on Oct. 4, 2008. In June 2010, he was sentenced to 16 years behind bars.

Without notifying the prosecutors and the crime victims, Schwarzenegger granted a clemency application that reduced the sentence to seven years. The governor’s executive order was signed on Dec. 30, 2010, but not announced until hours before he left office on Jan. 2, 2011.

While Fabian Nunez is a Democrat and Schwarzenegger is a Republican, they were allies during the period when Nunez presided over the Assembly and Schwarzenegger occupied the governor’s office.

The victims, their families and prosecutors were stunned by the commutation, and some members of the Legislature voiced outrage.

San Diego County District Attorney Bonnie Dumanis initiated a legal challenge on behalf of her office and three surviving victims of the knife attack. Santos’ parents, Fred and Kathy Santos, filed a separate but related lawsuit.

The plaintiffs pinned their hopes on a 2008 voter-approved amendment to the state Constitution that grants victims and their families the right to be heard in post-conviction proceedings. It is known as the Victims’ Bill of Rights or Marsy’s Law.

But in September 2012, Sacramento Superior Court Judge Lloyd Connelly ruled in Schwarzenegger’s favor, finding that the amendment does not apply to clemency.

On Tuesday, three justices of the 3rd District Court of Appeal, obviously unhappy with the decision they feel the law dictates, upheld Connelly’s ruling.

“We are compelled to conclude that, while Schwarzenegger’s conduct could be seen as deserving of censure and grossly unjust, it was not illegal,” the panel said in a 41-page unpublished opinion. “Marsy’s Law, despite its obviously expansive protection of victims’ rights, does not restrict the executive’s clemency powers.”

The opinion was authored by Associate Justice Harry E. Hull Jr., with the concurrences of Presiding Justice Vance W. Raye and Associate Justice William J. Murray Jr.

In a separate, concurring opinion, Raye wrote:

“Marsy’s Law applies to ‘proceedings’ and to the ‘parole process.’ Parole is not clemency. Clemency is not a proceeding but an act of grace by a governor. ... As reprehensible as the Governor’s action in this instance might have been, it would be equally reprehensible to ignore the clear language of a constitutional provision.

“There is a process for achieving the outcome desired in this case, and the Legislature has already acted to do so in future cases; nothing more can be done.”

Raye was referring to legislation signed by Gov. Jerry Brown in 2011 that mandates a 10-day advance warning to prosecutors when a governor is considering a request for clemency, and it charges prosecutors with notifying victims or their family members, who then can submit a recommendation to the governor for or against commutation. The bill is not retroactive.

The conflicted panel’s detailed opinion failed to mollify the plaintiffs.

The San Diego County district attorney’s office immediately declared its intention to seek review at the California Supreme Court.

“Gov. Schwarzenegger deprived Esteban Nunez’s victims of an opportunity to be heard and he violated the intent of Marsy’s Law,” said Tanya Sierra, spokeswoman for the district attorney.

Nina Ashford, an attorney for Santos’ parents, said, “We find it a very sad day that the rights of the victims were diminished in the face of politics. The Santos family not only lost their son, they lost their sense of justice. This shakes the faith of every California citizen in our system.”

Laura Strasser, another attorney for the Santos family, noted the appellate justices “are hanging their hat on the word ‘proceeding.’ We believe a commutation is a proceeding, no different than any other proceeding in a criminal case.”

Through a spokeswoman, Attorney General Kamala Harris, who is required to defend Schwarzenegger because the commutation was granted in his official capacity as governor, declined to comment.

One of Esteban Nunez’s cohorts stabbed Luis Santos in the chest, severing an artery in his heart, and Santos almost immediately bled to death.

Nunez stabbed another young man in the abdomen and in the back and stabbed a third young man in the shoulder. He was initially charged with murder and assault with a deadly weapon as to each of the two men he personally stabbed, among other offenses. Pursuant to a plea agreement reached on the eve of trial, Nunez pleaded guilty to voluntary manslaughter in the death of Santos, and pleaded guilty to two counts of assault with a deadly weapon arising from his having personally stabbed two others.

Denny Walsh: (916) 321-1189