by Mark Wilson

The California Court of Appeals held that the victim notification requirements of "Marsy's Law" do not extend to the Governor's sentence commutation authority.

Near midnight on October 3, 2008, Esteban Nunez, Rafael Garcia, Ryan Jett, and Leshanor Thomas were refused admittance to a San Diego State University fraternity party. They were angry and decided to fight someone, to show how they "did it in Sac Town."

Nunez and his friends started an unprovoked fight with unarmed victims. Jett stabbed Luis Santos in the heart and he died at the scene. Nunez stabbed two other men, but both lived. A fourth victim suffered a fractured orbital wall.

Nunez and his friends fled to Sacramento, threw their knives in a river, and burned their clothes. When they were arrested Nunez, the son of former Speaker of the California State assembly Fabian Nunez, was charged with the Santos murder and with assaulting both of the men he personally stabbed.

Nunez ultimately pleaded guilty to voluntary manslaughter and two counts of assault with a deadly weapon. On June 28, 2010, he was sentenced to 16 years in prison.

On his final day in office, California Governor Arnold Schwarzenegger "announced in an executive order signed on December 31, 2010, that he had commuted Nunez's sentence from 16 years to seven years. Back-room dealings were apparent."

Neither the victims nor the prosecutor were notified that Schwarzenegger was considering the commutation. They did not learn of the decision until it was publicly announced and it was too late to be heard.

Although the executive order stated that Esteban Nunez applied for commutation, he actually had not. When asked about the commutation during an April 2011 Newsweek interview, Schwarzenegger responded: "Well, hello! I mean, of course you help a friend!"

The victims and prosecutor immediately filed a state action, seeking a declaration that the commutation was unconstitutional because the Governor did not give the victims the notice required by article I, section 28 of the California Constitution (Marsy's Law). They also sought an injunction enjoining the commutation.

Defendants moved for judgment on the pleadings, arguing that Marsy's Law does not apply to the Governor's executive clemency decisions.

The "commutation was 'distasteful' and 'repugnant to the bulk of the citizenry of this state' and Schwarzenegger in this instance abused his power as governor under the constitution," the trial court found. Nevertheless, the court granted Defendants' motion, finding that "Marsy's Law does not extend to the Governor's constitutional clemency power."

The California Court of Appeals affirmed. "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 obvious expansive protection of victims' rights does not restrict the executive's clemency powers . . . and we must affirm the judgment," the Court held.

"The simple but crucial question is whether the language of Marsy's Law...is broad enough to encompass the exercise of a Governor's clemency authority," one judge explained in a concurring opinion. "It is not. And 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."

"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," the concurring judge declared. "We are constantly urged to do 'justice,' unconstrained by the Constitution or anything beyond our own notions of right and wrong as expressed through our findings of legislative intent. That is not how the law works in a constitutional democracy." See: Santos v. Brown, 189 Cal. Rptr. 3d 234 (Cal. Ct. App. 2015).