Court Not Pumped Over Clemency for Arnold Ally

(CN) - Former Gov. Arnold Schwarzenegger's grant of clemency to the son of a political ally was "reprehensible" and "grossly unjust," but not illegal, a California appeals court ruled.

Esteban Nunez, the son of former California Assembly Speaker Fabian Nunez, pleaded guilty to manslaughter after participating in a knife attack on a group of unarmed students.

Nunez and his friends were angry after being turned away from a fraternity party at San Diego State University. They returned to a friend's apartment, got their knives, and decided to show how they "did it in Sac Town," according to court documents.

Returning to the university, they attacked a group of men unassociated with the fraternity. Nunez's friend stabbed Luis Santos in the chest, severing an artery, and almost immediately killing him. Nunez himself stabbed another man in the abdomen, and a third in the shoulder.

Nunez pleaded guilty to voluntary manslaughter and two counts of assault with a deadly weapon. A probation court recommended he be sentenced to 11 years in prison, stating that Nunez lied when he first talked to the police, and sent a text message to a codefendant after his arrest saying, "Gangster rap made us do it. lol."

The trial court departed upward from his recommendation, and sentenced Nunez to 16 years in prison.

But on Schwarzenegger's last day as governor of California, he signed an executive order commuting Nunez's sentence from 16 years to seven years in prison.

Although Esteban's father was a Democrat, he was Schwarzenegger's ally during the period when he presided over the assembly.

The San Diego County District Attorney's office challenged the order, arguing that it violated the voter-approved Victims' Bill of Rights, also known as Marsy's Law, which gives victims and their families the right to be heard in post-conviction proceedings.

But a state judge ruled that Schwarzenegger had the authority to commute Nunez's sentence without consulting the victim's families, and the 3rd District Court of Appeal unhappily agreed in an opinion published Wednesday.

"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 Hull, Jr., said, writing for the three-justice panel. "Marsy's Law, despite its obviously expansive protection of victims' rights does not restrict the executive's clemency powers under California Constitution"

In a concurring opinion, Justice Vance Raye said, "no amount of lexicological alchemy, no matter how well intentioned, permits the language [of Marcy's Law] to be stretched, manipulated, and tortured to reach what to some would be a 'correct' result."

The victims' rights law applies to legal proceedings and the parole process, but "Clemency is not a proceeding but an act of grace by a Governor," Raye said.

While a governor may constrain himself by developing proceedings to govern the grant of clemency, "it would make no sense to impose Marsy's Law on such an ephemeral, ad hoc process," Raye said.

"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," Raye concluded.

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