FILE - In this July 11, 2011 file photo, former Assembly Speaker Fabian Nunez, D-Los Angeles, talks to reporters after the first hearing in a lawsuit against the state of California and former Gov. Arnold Schwarzenegger for reducing the manslaughter sentence for Nunez's son, who was one of the men convicted in the 2008 slaying of a 22-year-old college student, outside a Sacramento County Superior Courtroom. A Sacramento County judge on Friday, Sept. 7, 2012 will hear arguments over whether former Gov. Arnold Schwarzenegger violated California law when he reduced the sentence. (AP Photo/Rich Pedroncelli, File)
SACRAMENTO, Calif. – The family of Luis Santos, who was killed in a violent attack in California four years, is trying to overturn the last-minute commutation of one of the men who killed him.
They claim then-Gov. Arnold Schwarzenegger violated California law when he cut the manslaughter sentence for the son of a political ally.
Lawsuits filed by the San Diego district attorney and Santos' family claim Schwarzenegger violated voter-approved Marsy's Law because he did not notify the victims' families or the district attorney who prosecuted the case that he was cutting the sentence of Esteban Nuñez from 16 years to seven.
Schwarzenegger issued the commutation hours before he left office in January 2011 and just months after the sentencing of Nuñez, the son of the governor's political ally, Fabian Nuñez.
The attorney general's office, arguing on behalf of Schwarzenegger, has sought to have the case thrown out several times, and will do so again on Friday. Its attorneys argue that Marsy's law does not apply to a governor's power to pardon and commute sentences and say he had "unfettered discretion to grant clemency without judicial review."
Schwarzenegger knew the law, he knew exactly what was required of him, and yet he defied the oath of his office.
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The AG's office argues in briefs filed this month that the plaintiffs are seeking resolution of a political question, rather than a legal one.
Esteban Nuñez pleaded guilty to voluntary manslaughter in a 2008 attack on an unarmed group of young men after Nuñez and some friends were turned away from a fraternity party. Three others pleaded guilty to various charges in the attack that killed Santos, a 22-year-old college student.
Attorneys for the Nuñez family and San Diego District Attorney Bonnie Dumanis say Schwarzenegger blatantly violated the state constitution with his last-minute decision, ignored the victims' due process rights and acted "in an arbitrary and capricious manner."
There is also evidence that Schwarzenegger generally required that his office follow the provisions of Marsy's law, which voters approved while he was in office in 2008, when he considered other clemency cases, deputy district attorney Laura Tanney wrote in a brief filed this week.
"Schwarzenegger knew the law, he knew exactly what was required of him, and yet he defied the oath of his office," Tanney wrote.
"Perhaps, if Schwarzenegger had all of the information, he would have been forced to listen to his conscience and the conscience of the community, and he would not have been able to reduce Nuñez's sentence by more than half. But he believed he was above the law; he was not. His actions were unconstitutional and should be declared void."
A judge last year combined lawsuits by the family and DA's office, both of which seek to overturn the commutation and restore the original 16-year sentence for Nuñez.
Esteban Nuñez, who is now 23, is incarcerated at Mule Creek State Prison in Ione, about 50 miles southeast of Sacramento. His father is a political consultant in Sacramento.
Current Gov. Jerry Brown in October signed a bill that was written in response to the controversy over Nuñez's commutation. It requires the governor to give at least 10 days' notice to the district attorney in the jurisdiction where the crime occurred before acting on an application for clemency. That would give the district attorney time to notify crime victims and allow them to petition against a sentence reduction.
Based on reporting by the Associated Press.
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