Concord family sues ex-governor over commutation

(01-21) 04:00 PST Sacramento - --

A Concord family is fighting back against a reduced punishment for a man involved in the killing of their son, filing a lawsuit Thursday against the state and Arnold Schwarzenegger that argues the former governor illegally commuted the sentence of one of the attackers.

During his last hours in office, Schwarzenegger commuted the sentence of Esteban Núñez, the son of former Assembly Speaker Fabian Núñez. Esteban Núñez pleaded guilty to voluntary manslaughter and other charges in the fatal stabbing of Luis Santos. Schwarzenegger reduced Esteban Núñez's sentence from 16 years in prison to seven years.

The Santos family filed the suit against Schwarzenegger and the California Department of Corrections and Rehabilitation in Sacramento County Superior Court, alleging that Schwarzenegger violated the state Constitution. The family wants Núñez's original sentence reinstated.

Kathy Santos, the mother of the murder victim, told reporters at a news conference that her family is "not well connected, politically powerful or wealthy, but we will not stop fighting for our legal rights and we will not stop fighting for our son Luis."

Fred Santos, the young man's father, said that after the sentencing in 2010 his family had hoped the new year would allow them to begin to move past the crime. "But boy, were we ever wrong about that," he said, calling the commutation a political favor.

"By commuting the sentence of one of our son's killers, Arnold Schwarzenegger committed a gross injustice," Santos said.

Specifically, the Santos family is claiming Schwarzenegger violated provisions of Proposition 9, also known as Marsy's Law, passed by voters in 2008, that amended the Constitution to provide greater rights for victims of crime. They allege Schwarzenegger failed to notify, involve and consider the victims of the crime, which is mandated under Prop. 9, prior to commuting Núñez's sentence.

The suit also cites provisions in the proposition - now part of the state Constitution - that call for people convicted of crimes to suffer the sentence imposed on them by courts.

Luis Santos' parents, who live in Concord, have said they were never notified that Núñez's sentence was commuted - and learned about the former governor's move through news reporters. Schwarzenegger later sent a letter apologizing to the Santoses for not informing them of his decision.

Fred Santos on Thursday called it a "non-apology" and a "publicity stunt to shut me up" after he publicly complained about not being informed of the commutation.

The Santoses' lawyers keyed on Schwarzenegger's lack of informing the family as a central part of their argument.

"Although he is allowed to commute sentences, he's not allowed to violate the Constitution in doing so," said Laura Strasser, an attorney for the Santos family. The family is not seeking compensation from Schwarzenegger.

Esteban Núñez's lawyer was unavailable for comment, and a spokesman for Schwarzenegger did not respond to a request for comment.

The 16-year sentence was handed down by a San Diego County judge as part of a plea agreement by Núñez.

The punishment stems from a 2008 attack near a San Diego State University fraternity, when a friend of Núñez's allegedly stabbed Santos in the chest. Núñez admitted to stabbing another man during the fight, although that man survived.

Núñez was initially charged with murder but pleaded guilty to voluntary manslaughter in a deal with prosecutors and received the maximum sentence. Schwarzenegger called the sentence disproportionate, saying the alleged stabber was also given 16 years.

Some legal experts said they thought it would be difficult to persuade a court to interfere with a governor's right to commute sentences.

Floyd Feeney, a law professor at UC Davis, said Marsy's law is focused on the normal criminal processes such as parole, and not the rarer instances of commutation or pardons.

"I don't see anything in Marsy's Law that would apply to this," he said, adding, "We're not talking about something that everyone's entitled to."

He said that it's not impossible that the courts would agree with the Santos family, but said it would be highly unlikely.

Still, Kathy Santos said that she and her family are prepared to fight the commutation to the highest levels and that Schwarzenegger underestimated their resolve.

"He messed with the wrong family," Santos said.

E-mail Wyatt Buchanan at wbuchanan@sfchronicle.com.

This article appeared on page C - 1 of the San Francisco Chronicle