Santos v. Brown, C072785

CourtCalifornia Court of Appeals
Citation238 Cal.App.4th 398,189 Cal.Rptr.3d 234
Docket NumberC072785
PartiesFrederico SANTOS et al., Plaintiffs and Appellants, v. Edmund G. BROWN, Jr., as Governor, etc., et al., Defendants and Respondents.
Decision Date02 June 2015

238 Cal.App.4th 398
189 Cal.Rptr.3d 234

Frederico SANTOS et al., Plaintiffs and Appellants
Edmund G. BROWN, Jr., as Governor, etc., et al., Defendants and Respondents.


Court of Appeal, Third District, California.

Filed June 2, 2015

Laura Bean Strasser, Strasser Law Corporation, 1517 Lincoln Way, Auburn, CA 95603, Nina S. Ashford, Law Office of Nina Salerno Ashford, 11400 Atwood Road, Auburn, CA 95603, for Plaintiff and Appellant Frederico Santos et al.

Laura Ellen Tanney, Office of the San Diego District Attorney, P.O. Box 121011, 330 West Broadway, Suite 860, San Diego, CA 92112, for Plaintiff and Appellant Bonnie M. Dumanis et al.

Seth Eden Goldstein, Office of the State Attorney General, P.O. Box 944255, Sacramento, CA 94244, for Defendant and Respondent Edmund G. Brown, Jr., as Governor, etc., et al.

Holly Marie Woesner, Orange County Office of the District Attorney, P.O. Box 808, Santa Ana, CA 92702, for Amicus curiae for appellant Orange County Office of the District Attorney.



238 Cal.App.4th 403

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. 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.

Esteban Nunez was subsequently charged with the murder of Luis Santos and assault with a deadly weapon as to each of the two men he personally stabbed, among other offenses.

Pursuant to a plea agreement entered into on the eve of trial, Esteban Nunez pleaded guilty to voluntary manslaughter in the death of Luis Santos and pleaded guilty to two counts of assault with a deadly weapon arising from his having personally stabbed the other two young men. In June 2010, he was sentenced to serve 16 years in prison.

On January 2, 2011, his last day in office as Governor of California, Arnold Schwarzenegger exercised his executive clemency power (Cal. Const., art. V, § 8, subd. (a); Pen.Code, § 4800 ; unless stated otherwise, statutory section references that follow are to the Penal Code) by commuting (reducing) the prison sentence of Esteban Nunez from 16 years to seven years.

The commutation came as a complete surprise to the crime victims and the prosecuting district attorney.

This litigation seeks to invalidate the commutation, arguing crime victims and district attorneys must receive notice and

189 Cal.Rptr.3d 237

opportunity to be heard before

238 Cal.App.4th 404

a grant of executive clemency, pursuant to the Victims' Bill of Rights Act of 2008, also known as Marsy's Law, adopted by voter initiative Proposition 9 in 2008, amending California Constitution, article I, section 28, and statutes. Marsy's Law broadly mandates notice to victims and an opportunity to be heard at “parole or other post-conviction release proceedings” before prisoners obtain early release from prison. (Cal. Const., art. I, § 28, subd. (b)(7).)

As earlier noted plaintiffs Frederico and Kathy Santos are the parents of Luis Santos who was killed in the knife attack perpetrated by Esteban Nunez and his cohorts. Parents of a deceased crime victim are also crime victims. (Cal. Const., art. I, § 28, subd. (e).) Other plaintiffs are San Diego County District Attorney Bonnie M. Dumanis, on behalf of the People of the State of California, and the surviving victims of the knife attack, Evan Henderson, Keith Robertson, and Brandon Scheerer (collectively, Dumanis).

The trial court concluded Marsy's Law does not apply to a Governor's clemency decision and entered judgment on the pleadings in favor of defendants Edmund G. Brown, Jr., Arnold Schwarzenegger, California Department of Corrections and Rehabilitation, its director Matthew Cate, and prison warden William Knipp.

Plaintiffs appeal, supported by an amici curiae brief filed by the Orange County District Attorney on behalf of herself and the district attorneys of Kern, Plumas, Marin, Yolo, and Stanislaus Counties. Plaintiffs urge a broad interpretation of Marsy's Law to require notice and opportunity for victims to be heard before any decision to release a prisoner early—not only parole decisions, but also executive grants of clemency. However, as we explain, this interpretation of Marsy's Law is foreclosed by the fact that Marsy's Law amended parole statutes to specify notice to victims and opportunity to be heard (§ 3043 et seq.) but left untouched the executive clemency statutes (§§ 4800 –4813 ) which merely stated the applicant for a “pardon” must give notice to the district attorney (§ 4804). After Schwarzenegger commuted Nunez's sentence, the Legislature enacted section 4805, mandating notice to the district attorney of “commutation” applications and reasonable effort by the district attorney to notify victims, who may submit to the Governor a recommendation for or against commutation.

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 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. Our holding is limited to subdivision (a) executive clemency and does not apply to the Governor's power under subdivision (b) of the same

238 Cal.App.4th 405

constitutional provision to reverse or modify a parole decision of the Board of Parole Hearings “on the basis of the same factors” the board is required to consider.

Facts and Proceedings

In our de novo review of a judgment on the pleadings, we assume the truth of all material facts properly pleaded, as well as judicially noticed matters. (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746, 53 Cal.Rptr.3d 203 (Connerly ).) Judicially noticed matters in this case include the probation report for Esteban Nunez, Schwarzenegger's executive order granting commutation, and the state's form application for clemency—for which judicial notice was granted in connection

189 Cal.Rptr.3d 238

with a demurrer and for which judicial notice was requested in connection with the motion for judgment, though we see no ruling on the latter request.

Around midnight on October 3, 2008, Nunez and his cohorts—Rafael Garcia, Ryan Jett, and Leshanor Thomas—were refused admittance to a fraternity party at San Diego State University. They were angry, retreated to a friend's apartment, displayed their knives, and spoke of fighting somebody to show how they “did it in Sac Town.” Nunez or Garcia, who were the most talkative, said “you take him from the front and I'll take him from the back; or we can switch this time.” Garcia later confirmed they were referring to fighting, and about a year earlier, he and Nunez got into a fight with someone and Garcia punched the male in the face and Nunez punched him in the back of the head, knocking him to the ground.

Nunez and friends left the apartment around 2:00 a.m., punctured some car tires, and started an unprovoked fight with unarmed victims they encountered near the campus arena. Victim Luis Santos was stabbed in the heart and died at the scene. Nunez personally inflicted great bodily injury by stabbing victim Henderson in the stomach and back. Nunez also personally inflicted great bodily injury by stabbing victim Robertson in the shoulder. Victim Scheerer was hit in the eye, fracturing the orbital wall.

Defendant and his companions fled, drove back to Sacramento, threw their knives in the river, and burned their clothing.

Nunez pleaded guilty to voluntary manslaughter and two counts of assault with a deadly weapon. He signed a document stating a factual basis for his plea that said, “I intentionally committed an act that caused the death of Luis Dos Santos and/or aided and abetted in the unlawful killing of Luis Dos Santos.” Nunez admitted, “I deliberately acted with conscious disregard for human life.” He admitted he personally inflicted great bodily injury on Henderson and Robertson.

238 Cal.App.4th 406

The probation department recommended a sentence of 11 years. The probation report states that, when they tried to interview Nunez about the offense, he referred them to his attorney's sentencing brief, and the attorney gave them Nunez's written statement to the court. The probation report quotes and paraphrases Nunez, but some of...

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