Metropolitan News-Enterprise


Monday, May 4, 2009


Page 1


C.A. Rules Out No-Parole Sentence for Teenage Kidnapper


By a MetNews Staff Writer


A life sentence without possibility of parole for kidnapping violated the state and federal constitutions where the defendant was 14 years old at the time of the crime and suffered from mental problems, and the victim was unharmed, the Fourth District  Court of Appeal has ruled.

The justices Thursday ordered a new sentencing hearing for Antonio DeJesus Nunez, whom Justice Richard Aronson of Div. Three described as “the only known offender under age 15 across the country and around the world subjected to an LWOP sentence for a nonhomicide, no-injury offense.”

The sentence, Aronson said, “is so freakishly rare as to constitute arbitrary and capricious punishment violating the Eighth Amendment.”

Nunez was convicted of participating in the 2001 kidnapping for ransom of Delfino Moreno, a reputed smuggler. The Court of Appeal, in its unpublished 2004 opinion rejected Nunez’s direct appeal, explained that Moreno was ambushed as he waited at a rendezvous point after driving four illegal aliens from Arizona to Santa Ana.

There were three kidnapers, including Nunez and a man named Perez. Perez and Nunez took him at gunpoint and transported him to an apartment where he was held while the kidnapers negotiated ransom with his brother.

Moreno’s brother agreed by telephone to exchange two kilos of cocaine and $50,000 for the victim. The exchange was to take place in the parking lot of a Long Beach supermarket, but the kidnappers left the area because they sensed the police were in the area.

Police spotted the kidnappers’ vehicle, and a chase and a shootout ensued. Perez and Nunez fled on foot and were captured.

At trial, Nunez testified that he was not in on the actual abduction, and had no connection to the others until he met Perez and Moreno at a party and was asked if he wanted to make some money. Moreno was not restrained at the time, and Nunez testified he was told that the kidnapping had been faked.

In support of his habeas corpus petition, Nunez declared that he grew up in a violent home in a violent neighborhood in South Central Los Angeles. He was regularly abused by his parents, grandmother, and an older sister, he said, and was shot multiple times in a random incident of gang violence when he was 13.

His brother, who was a year older, was killed in the incident. A psychiatrist who interviewed Nunez several times in 2007 submitted a declaration stating that Nunez suffered from posttraumatic stress disorder as a result and that his involvement in the ransom plot and subsequent shootout with the police was related to that affliction in that he “lacked ability to control his impulses” and “was highly susceptible” to being influenced by elders.

In concluding that the sentence violated the state Constitution’s ban on “cruel or unusual punishment,” Aronson acknowledged that the crime was “grave” and Nunez’s personal culpability significant. But to impose an LWOP sentence on a kidnapper below the age of 16, when such a sentence cannot be imposed on a murderer that young, is “arbitrary and grossly disproportionate,” the justice said.

Aronson cited In re Lynch (1972) 8 Cal.3d 410 and People v. Dillon (1983) 34 Cal.3d 441.

In Lynch, the court held that a statute prescribing a life sentence for second-offense indecent exposure was unconstitutional on its face. In Dillon, the justices overturned the life sentence imposed on a 17-year-old convicted under the felony-murder rule, finding the statutory sentence cruel or unusual as applied to a defendant that young, who had no prior criminal record and shot a man he thought was about to shoot him.

 As in Dillon, Aronson wrote, the defendant’s personal characteristics, including his mental illness, had to be considered in determining the constitutionality of the sentence under California law.

The justice went on to hold that the sentence also violates the Eighth Amendment, based on U.S. Supreme Court decisions that require proportionality in sentencing, taking into consideration the gravity of the crime, the sentences imposed for other crimes in the same jurisdiction, and the sentences imposed for the same crime in other jurisdictions.

While kidnapping is a serious crime and kidnapping for ransom particularly so, the defendant’s age, mental state, and lack of a prior record of serious crime must also be considered, Aronson said.

The sentence, he added, is disproportionate to other sentences in California and elsewhere. The only other crimes for which an offender below 16 years of age can receive an LWOP sentence in this state, he noted, are kidnapping for ransom with bodily injury and attempted trainwrecking, and the attorney general did not refute the evidence purporting to show that no other offender who was 14 at the time of the crime is serving a similar sentence for a crime in which no one was killed or injured.

Justices William Bedsworth and Raymond Ikola joined the opinion.

Nunez was represented by Bryan A. Stevenson of the Equal Justice Initiative of Alabama, which has challenged no-parole sentences for children under 14 in several states, and by Irvine attorney Jack M. Earley. The state was represented by Deputy Attorneys General Lilia E. Garcia and Arlene A. Sevidal.

The case is In re Nunez, 09 S.O.S. 2475.


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