Tuesday, June 2, 2015

California: Nunez Commutation "Grossly Unjust, but Not Illegal"

The following is an abbreviated version of a full judicial opinion which can be found here

Esteban Nunez--the son of Fabian Nunez, the former Speaker of the California State Assembly--aided in the killing of Luis Santos during a knife attack in October of 2008. The attack was initiated by Esteban Nunez and his acquaintances, none of whom were armed. One of Esteban Nunez’s cohorts stabbed Santos in the chest severing an artery in his 2 heart after which Santos almost immediately bled to death. During the fight Esteban Nunez stabbed another young man in the abdomen and in the back and stabbed a third young man in the shoulder. Esteban Nunez was subsequently charged with the murder of Luis Santos and assault with a deadly weapon as to each of the two men he personally stabbed.

Esteban Nunez pleaded guilty to voluntary manslaughter in the death of Luis Santos and pleaded guilty to two counts of assault with a deadly weapon arising from his having personally stabbed the other two young men. In June 2010, he was sentenced to serve 16 years in prison. The probation department had recommended a sentence of 11 years.

On January 2, 2011, his last day in office as Governor of California, Arnold Schwarzenegger commuted the prison sentence of Esteban Nunez from 16 years to seven years. The commutation came as a complete surprise to the crime victims and the prosecuting district attorney.

This litigation seeks to invalidate the commutation, arguing crime victims and district attorneys must receive notice and opportunity to be heard before a grant of executive clemency, pursuant to the Victims’ Bill of Rights Act of 2008, also known as Marsy’s Law, adopted by voter initiative Proposition 9 in 2008, amending California Constitution, article I, section 28, and statutes. Marsy’s Law broadly mandates notice to victims and an opportunity to be heard at “parole or other post-conviction release proceedings” before prisoners obtain early release from prison. (Cal. Const., art. I, § 28, subd. (b)(7).)

The trial court concluded Marsy’s Law does not apply to a Governor’s clemency. Plaintiffs urge a broad interpretation of Marsy’s Law to require notice and opportunity for victims to be heard before any decision to release a prisoner early -- not only parole decisions, but also executive grants of clemency. However, as we explain, this interpretation of Marsy’s Law is foreclosed by the fact that Marsy’s Law amended parole statutes to specify notice to victims and opportunity to be heard (§ 3043 et seq.) but left untouched the executive clemency statutes (§§ 4800-4813) which merely stated the applicant for a “pardon” must give notice to the district attorney (§ 4804).

After Schwarzenegger commuted Nunez’s sentence, the Legislature enacted section 4805, mandating notice to the district attorney of “commutation” applications and reasonable effort by the district attorney to notify victims, who may submit to the Governor a recommendation for or against commutation. We are compelled to conclude that, while Schwarzenegger’s conduct could be seen as deserving of censure and grossly unjust, it was not illegal. Marsy’s Law, despite its obviously expansive protection of victims’ rights does not restrict the executive’s clemency powers under California Constitution, article V, section 8, subdivision (a) or 4 the clemency statutes, and we must affirm the judgment.

Back-room dealings were apparent. Neither the victims nor the district attorney were notified that Schwarzenegger was considering commuting Nunez’s sentence. Schwarzenegger’s executive order said Jett, not Nunez, stabbed the victim who died; Jett had a prior criminal record where Nunez did not; and both were sentenced to 16 years in prison. The executive order said the evidence was that Jett started the confrontation. The executive order stated, “Nunez applied for a commutation of his sentence on the ground that his sentence is disproportionate in comparison to Jett’s sentence.” The executive order stated, “Considering Nunez’s limited role in the killing and his clean prior criminal record, I believe his sentence is disproportionate in comparison to Jett’s.”

Schwarzenegger sent a letter to Mr. and Mrs. Santos. The letter dated January 5, 2011 said:
“Words cannot adequately express the sorrow in my heart for the loss of your son, Luis. There is no way to explain or excuse the kind of indiscriminate violence that takes a life so young and full of promise. Maria and I continue to hold your family in our hearts and prayers as you try to heal from this tragedy.
“It is with a heavy heart that I write to you in acknowledgement that my commutation of the sentence of Esteban Nunez has caused you more pain. I recognize that the last minute nature of my final acts as Governor provided you no notice, no time to prepare for or absorb the impact of this decision. For that, I apologize. The decision to commute a sentence, grant clemency or issue a pardon to someone convicted of a grave crime is the most solemn responsibility any Governor could face. I took this responsibility very seriously and considered each and every fact before making my decisions in the ten cases in which I chose to act.
“As a parent, I know that reason has no place in judging the crimes of these men. And, as a father, I believe there is no sentence too harsh for the death of your son. But our system of justice demands that the facts of this case be weighed without the passion of a father’s rage. And the facts of this case do not support equal sentences for both men.
“I understand why you may never comprehend or agree with my decision. And I am profoundly sorry that my decision has added to your burden. I hope that you and your family find peace in the wake of this tragic loss. Maria and I send our deepest condolences and heartfelt prayers.” 
In an interview with Newsweek in April 2011, when asked about the commutation, Schwarzenegger in part responded, “Well, hello! I mean, of course you help a friend!” (Grove, Arnold Schwarzenegger Cavorts, and Confesses (April 17, 2011) 8 Newsweek [as of Jun. 2, 2015] ). Although the executive order stated Esteban Nunez applied for commutation, there is no application in the record, and plaintiffs allege they requested the application but none was provided.

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