Nuñez’s re­duced sen­tence up­held

Then-Gov. Sch­warzeneg­ger pro­voked out­rage on last day in of­fice by re­duc­ing sen­tence in killing

Los Angeles Times - - FRONT PAGE - By Christo­pher Gof­fard

A Cal­i­for­nia ap­peals court has ruled that for­mer Gov. Arnold Sch­warzeneg­ger was within his rights to com­mute the pri­son sen­tence for con­victed killer Este­ban Nuñez, the son of for­mer As­sem­bly Speaker Fabian Nuñez.

Gov. Arnold Sch­warzeneg­ger waited un­til his last day in of­fice to an­nounce the com­mu­ta­tion of con­victed killer Este­ban Nuñez, the son of a pow­er­ful po­lit­i­cal ally, and then gave this ex­pla­na­tion: “Of course you help a friend.”

His de­ci­sion in Jan­uary 2011 to re­duce Nuñez’s sen­tence from 16 years to seven years sparked out­raged editorials, swift leg­is­la­tion, an out­cry from vic­tims’ rights groups and wide­spread con­dem­na­tion from Democrats and Repub­li­cans.

On Tues­day, a Cal­i­for­nia ap­peals court said the for­mer gover­nor’s ac­tion was nonethe­less within his rights, and up­held the re­duced pri­son term.

“We are com­pelled to con­clude

that, while Sch­warzeneg­ger’s con­duct could be seen as de­serv­ing of cen­sure and grossly un­just, it was not il­le­gal,” As­so­ciate Judge Harry Hull Jr. wrote on be­half of a three-judge panel on the 3rd Dis­trict Court of Ap­peal in Sacra­mento.

The case stems from the fa­tal stabbing of Luis San­tos, a 22-year-old San Diego Mesa Col­lege stu­dent, and an attack on three of his friends — all of whom were un­armed — at San Diego State in Oc­to­ber 2008.

San Diego pros­e­cu­tors said Nuñez and co-code­fen­dant Ryan Jett, who were armed with knives, were equally guilty in San­tos’ death and had acted in con­cert. Pros­e­cu­tors said it was never clear which one of them had stabbed San­tos, who died of a sin­gle knife wound to the heart.

Soon af­ter the stabbing, Nuñez and Jett drove to the Sacra­mento River, burned the clothes they had worn that night and dis­posed of the knives. They ini­tially faced the pos­si­bil­ity of life in pri­son on mur­der charges, but pleaded guilty to lesser charges of vol­un­tary man­slaugh­ter and as­sault. A judge gave them both 16 years in pri­son.

Nuñez’s fa­ther — for­mer As­sem­bly Speaker Fabian Nuñez, a Demo­crat whose po­lit­i­cal sup­port Sch­warzeneg­ger re­lied on — claimed the trial judge had been un­duly harsh with his son.

“I used my re­la­tion­ship with the gover­nor to help my own son,” he told The Times last year. “I’d do it again.”

The re­sult was a com­mu­ta­tion that could send Este­ban Nuñez home on pa­role by April 2016. In his writ­ten ex­pla­na­tion, the gover­nor said it was un­fair that Jett and Nuñez should get the same sen­tence, con­sid­er­ing that Nuñez had no prior record, though Jett did, and that Jett had ac­tu­ally stabbed San­tos.

The San Diego dis­trict at­tor­ney’s of­fice had not been no­ti­fied in ad­vance that the gover­nor was con­sid­er­ing a com­mu­ta­tion, and the Cal­i­for­nia Leg­is­la­ture quickly passed a law man­dat­ing that a dis­trict at­tor­ney’s of­fice must get at least 10 days no­tice.

The dis­trict at­tor­ney’s of­fice, along with the San­tos fam­ily, sued to block the com­mu­ta­tion, ar­gu­ing that the gover­nor’s fail­ure to no­tify them in ad­vance was a vi­o­la­tion of Marsy’s Law, also known as the Vic­tims’ Bill of Rights Act of 2008.

The law says that vic­tims have a right to be heard at “pa­role or other post-con­vic­tion re­lease pro­ceed­ings” be­fore in­mates could be re­leased early. A Sacra­mento judge ruled in 2012 the com­mu­ta­tion was “dis­taste­ful” and “re­pug­nant” but legal, say­ing the law as it was writ­ten at the time did not ap­ply to cle­mency pro­ceed­ings.

In up­hold­ing that de­ci­sion Tues­day, the ap­peals court seemed to share some of that dis­taste for the gover­nor’s ac­tion. “Back-room deal­ings were ap­par­ent,” the court wrote, not­ing that Nuñez had filed a no­tice of ap­peal but signed a no­tice to drop it in early Dec. 2010, weeks be­fore the com­mu­ta­tion was signed.

In an opin­ion con­cur­ring with the ap­peals court’s ma-

‘While Sch­warzeneg­ger’s con­duct could be seen as de­serv­ing of cen­sure and grossly un­just, it was not il­le­gal.’ — As­so­ciate Judge Harry Hull Jr. 3rd Dis­trict Court of Ap­peal

jor­ity, Pre­sid­ing Judge Vance Raye wrote that it was clear Marsy’s Law did not ap­ply in the cur­rent case, since a cle­mency was not a “pro­ceed­ing but an act of grace by a Gover­nor.”

The judge wrote that “no amount of lex­i­co­log­i­cal alchemy, no mat­ter how well in­ten­tioned, per­mits the lan­guage to be stretched, ma­nip­u­lated, and tor­tured to reach what to some would be a ‘cor­rect’ re­sult.”

The judge added: “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.”

Sch­warzeneg­ger could not be reached for com­ment.

Nina Salarno, a vic­tims’ rights at­tor­ney rep­re­sent­ing the San­tos fam­ily, said she would con­tinue to pur­sue the battle to the Cal­i­for­nia Supreme Court if the fam­ily wishes.

“If the fam­ily can en­dure that, we are happy to stand with them,” Salarno said. “They buried their son, they ac­cepted the ne­go­ti­ated sen­tence as jus­tice for their son’s life, and then the pol­i­tics of the sys­tem al­lowed jus­tice to be taken from them. I just don’t know how much more the fam­ily can take.”

Fred San­tos, the vic­tim’s fa­ther, said the fam­ily was not yet sure whether they would ap­peal. “Jus­tice is very elu­sive,” he said. “We have not dis­counted” an ap­peal.

Brigida San­tos, the vic­tim’s sis­ter, said she had not been op­ti­mistic that the ap­peals court would rule in her fam­ily’s fa­vor. “I wouldn’t say I was ever hope­ful,” she said. “From the very be­gin­ning, that’s just how this case has gone.”

She said she has been strug­gling to move on with her life since her brother’s death. “I just turned 30 and I just got my life on track,” she said. Nuñez “is out in April 2016. It’s dis­gust­ing.”

Rich Pedroncelli As­so­ci­ated Press

IN 2007, Gov. Arnold Sch­warzeneg­ger, right, jokes with As­sem­bly Speaker Fabian Nuñez. “I used my re­la­tion­ship with the gover­nor to help my own son,” Nuñez told The Times last year. “I’d do it again.”

K.C. Al­fred San Diego Union-Tri­bune

ESTE­BAN NUÑEZ reacts af­ter be­ing sen­tenced in 2010 to 16 years in the fa­tal stabbing of Luis San­tos in 2008.

Mark Boster Los An­ge­les Times

FROM LEFT, Este­ban Nuñez, Ryan Jett, Rafael Garcia and Le­shanor Thomas are ar­raigned in 2008 in San Diego County Su­pe­rior Court.

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