Metropolitan News-Enterprise


Thursday, July 2, 2015


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Court of Appeal Orders Publication of Opinion Upholding Schwarzenegger’s Pardon of Esteban Nunez


By a MetNews Staff Writer


The Third District Court of Appeal yesterday granted Gov. Jerry Brown’s request that it publish its June 2 opinion upholding his predecessor’s decision to grant executive clemency without advance notice to prosecutors and victims.

The panel said then-Gov. Arnold Schwarzenegger didn’t violate any laws when he reduced the prison term imposed on the son of former Assembly Speaker Fabian Nunez just before leaving office.

“We are compelled to conclude that, while Schwarzeneg­ger’s conduct could be seen as deserving of censure and grossly unjust, it was not illegal,” Justice Harry E. Hull Jr. wrote for the court.

On his last day in office in 2011, Schwarzenegger’s office announced that he had commuted the 2010 sentence of Esteban Nunez to seven years from 16 years in the stabbing death of college student Luis Santos in San Diego. The commutation had actually been issued two days earlier.

Hull said it was obvious that there were “[b]ack-room dealings” afoot, since Nunez had signed a notice of withdrawal of his appeal more than three weeks before the sentence was commuted, although his lawyer didn’t file the notice until after the commutation was announced.

Santos, then a student at San Diego’s Mesa College, was killed in October 2008 during a confrontation with Nunez and his friends, who had been turned away from a party near the San Diego State University campus.

Nunez was one of four defendants in the case, and the governor’s commutation order said his sentence was reduced because it was unjust for him to receive the same term as a co-defendant who actually struck the fatal blow. But Nunez admitted joining in the attacks on Santos and three other unarmed victims, Hull noted, and that he seriously injured two of the victims by stabbing them.

Hull added that, although Nunez expressed contrition in a letter to the judge prior to sentencing, “the probation report states Nunez lied when first contacted by police, was ‘never cooperative,’ and after his arrest and release sent a text message to a codefendant stating, ‘Gangster rap made us do it lol.’”

Prison records show that Nunez remains incarcerated at Mule Creek State Prison.

Frederico and Kathy Santos, the deceased victim’s parents, as well as San Diego County District Attorney Bonnie Dumanis and the three survivors of the attack, sued to overturn the shortened sentence, arguing that the governor violated Marsy’s Law, a voter-approved constitutional amendment that requires victims to be notified before a decision. Five district attorneys filed an amicus brief supporting their position.

But the Court of Appeal agreed with a Sacramento Superior Court judge who ruled that Marsy’s Law’s provision granting victims the right to participate in “parole or other post-conviction release proceedings” does not extend to executive clemency, which the court said is not a “proceeding” in the legal sense.

Hull noted that the initiative, in addition to amending the Constitution, also amended statutes related to parole, but left untouched the laws relating to executive clemency.

The justice also pointed out that the Legislature responded to Schwarzenegger’s action by doing what Marsy’s Law didn’t do, passing a law requiring that prosecutors and victims be given advance notice of the governor’s intent to grant clemency and an opportunity to respond.

Presiding Justice Vance W. Raye wrote a concurring opinion saying Schwarzenegger’s action might have been “reprehensible,” but that the court could not substitute its own notions of “justice” for legislative intent. Justice William Murray Jr. added in his own concurrence that the word “proceeding” cannot be reasonably construed to include a process “which the governor conducts in a private setting within the confines of his or her office.”

The case is Santos v. Brown, 15 S.O.S. 3407.


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