The Court of Appeal publishes this opinion today. And it's relentless. Relentless. Seriously. Relentless.
Justice Hull lets you know at the very outset that we're not just talking about any defendant. He lets you know in the very first sentence not only who we're talking about and what he did, but also why this is a high-profile case. Saying: "Esteban Nunez -- the son of Fabian Nunez, the former Speaker of the California
State Assembly -- aided in the killing of Luis Santos, the only son of Frederico and Kathy
Santos, during a knife attack on October 4, 2008."
Now, that doesn't necessarily tell you if the Court of Appeal is going to go hard or soft on this one. Maybe they're going to take a good look at the case and have sympathy for a troubled young man, despite the fact that we're usually pretty harsh on criminal defendants.
But you quickly get a sense that that's not necessarily how things are going to go down. Because then Justice Hull tells the reader -- in the very next sentences -- why Mr. Nunez was convicted:
"The attack, initiated by Esteban Nunez
and his acquaintances on Santos and on other young men, none of whom were armed,
took place near the campus of San Diego State University. Among other acts of violence,
one of Esteban Nunez’s cohorts stabbed Luis Santos in the chest severing an artery in his heart after which Luis 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. We set forth the facts surrounding the knife attack by
Esteban Nunez and the others in more detail in a moment."
Well, now. That's not very good, is it? Maybe the Court of Appeal's not going to look so favorably on this young man after all. Sounds like his conviction's going to be affirmed, right?
But this case isn't about his conviction. It's about something else. Because Mr. Nunez pled guilty to voluntary manslaughter, and "[i]n June 2010, he was sentenced to serve 16 years in prison."
So what's it about? You may perhaps recall the details. If not, Justice Hull reminds you of just what transpired thereafter:
"On January 2, 2011, his last day in office as Governor of California, Arnold
Schwarzenegger exercised his executive clemency power . . . by commuting (reducing) the prison sentence of Esteban Nunez
from 16 years to seven years."
Then Justice Hull adds a paragraph break. After noting the "midnight" nature of the clemency, he adds:
"The commutation came as a complete surprise to the crime victims and the
prosecuting district attorney."
Hmm. I wonder how Justice Hull feels about Gov. Schwarzenegger's decision?
One need not speculate. Justice Hull tells the reader exactly what he thinks: "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 [which requires advance notification to victims parole and related proceedings], 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 the clemency statutes, and we must affirm the judgment."
"Deserving of censure" and "grossly unjust". Tell us what you really think, Justice Hull.
The Governator isn't the only one who's at the receiving end of the Court of Appeal's ire. Mr. Nunez doesn't get treated with kid gloves either. A brief sample of the Court of Appeal's opinion is more than enough to let you know what the justices think of him as well:
"Esteban Nunez’s self-serving letter to the court asserted he felt remorse, not for
what he did, but for what “happened.” He blamed his codefendants for having “negative
influences” on him. He claimed he “always intended to take responsibility for my
actions” (despite fleeing the scene and destroying evidence) and was willing to turn
himself in when the arrest warrant issued, but the district attorney was not interested. He
said, “the justice system has its faults,” but “I still have hope the truth will be seen and heard. I guess I’m asking that you pay attention to the facts on this case, for the facts
speak for themselves.”
Contrary to the content and tone of Nunez’s letter, 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.'"
Dude. After you've stabbed someone, and someone's been killed, it's probably not a good idea to send a mocking text message to your co-defendant. That tends to make you look, oh, I don't know: kinda bad.
Oh, and lest you think that the Court of Appeal is only displeased about the result, they've got some words about the process as well. Saying:
"On January 2, 2011, Schwarzenegger’s last day as Governor, he announced in an
executive order signed on December 31, 2010, he had commuted Nunez’s sentence from
16 years to seven years. Back-room dealings were apparent. Esteban had filed a notice
of appeal in the criminal case but signed a notice of abandonment and request for
dismissal of appeal on December 6, 2010 -- before the grant of clemency. Nunez’s
attorney signed the abandonment and dismissal request the day after the grant of
clemency and filed it later, on January 20, 2011. Neither the victims nor the district
attorney were notified that Schwarzenegger was considering commuting Nunez’s
In short, Mr. Nunez (and Gov. Schwarzenegger) essentially win the appeal, but get tarred in the process. Not that they perhaps care. But tarred they are. Mercilessly.
The Court of Appeal's opinion is unanimous. Both Justice Raye and Justice Murray, however, also write concurring opinions. The last paragraph of Justice Murray's concurrence begins: "As reprehensible as the Governor’s action in this instance might have been . . . ."
Lest there be any doubt from Justice Hull's opinion what the panel thinks.