District Attorney Bonnie Dumanis Reacts To Commutation Of Esteban Nunez

In his final hours in the governor's office, Arnold Schwarzenegger used his power to reduce the 16-year prison sentence of Esteban Nunez to seven years. Nunez, son of former Assembly Speaker Fabian Nunez, pleaded guilty to voluntary manslaughter for his involvement in the stabbing death of a local college student in 2008. District Attorney Bonnie Dumanis talks to us about why she is opposed to the decision to commute Nunez's sentence. We also speak to Dumanis about her goals for her third term in office, which began this week.

Guest

Bonnie Dumanis, San Diego District Attorney

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CAVANAUGH: I'm Maureen Cavanaugh and you're listening to These Days on KPBS. It's a common practice for a head of state or a governor to grant commutations and partners at the end of a term in office. Most of these grants of clemency go to prisoners who have wide support and who show evidence that they are deserving of this special consideration. However, there are also some very controversial commutations and partners, one of those has just recently made headlines here in San Diego. In the last hours of his term as governor, Arnold Schwarzenegger commuted the sentence of 21-year-old Esteban Núñez, who was serving a 16-year sentence for voluntary manslaughter in the fatal stabbing of a student near San Diego state university. Núñez, the son of former California assembly speaker, Fabian Núñez, will now serve what remains of a seven-year sentence. The commutation has outraged members of the victim's family, law enforcement officials and many here in San Diego. I'd like to welcome my guest, San Diego County district attorney, Bonnie Dumanis. Bonnie, good morning.

DUMANIS: Good morning.

CAVANAUGH: And I'd like to invite our listeners to join the conversation. Do you think political cronyism played a part in the sentence reduction, or is it as simple as one man showing mercy towards the son of a friend? Give us a call with your questions and your comments about this sentence reduction, 1-888-895-5727. That's 1-888-895-KPBS. Bonnie, I'm gonna ask you if you would give us a little bit of a background of this story for people who are not familiar with it or perhaps have forgotten some of the details. What happened? What was the reason Esteban Núñez pleaded guilty to voluntary manslaughter.

DUMANIS: Well, as in any case, there were several defendants in this case. So when we are faced, just as the defense is face with a trial, and you have a jury that's going to make a decision, you weigh the risks to going to trial. And we did that as well as they did that. And in this case, there were several defendants who were involved in, you know, this incident, which was using knives against Luis Santos and some of his friends, and they all were very much involved. And the theory in these kinds of cases are, when you have several people acting as a gang or as a group, they back one another up. And so everybody is really equally responsible for whoever gets killed because it's their back up. The use of the knives, the use of their bodies, that make it possible to do what they do. And in fact, he made comments like I want to back up my homeboy, and things like that, in the process. So he was looking at 25 years to life with a murder charge. Or second degree murder which is probably where it may have fallen, which would have been 16 years to life. So they're facing that possibility, a life sentence. And we're also facing the possibility of a lesser charge, trauma to the victim's family, they had, up, another child. That sort of thing. We worked with the victim's family. They are a wonderful family. Luis's mother and father are wonderful people. He was a wonderful kid. We talked with them about the options. And you know, they were willing to go along with this because they wanted some legal closure to this. They can't move on themselves. And so imagine how they felt. They had pleas, all the cases were solved by plea, jet and Núñez pled guilty to voluntary manslaughter, which the family didn't feel it was that, but none the less, understanding the process, they think the case is done of they have gone to court, the Court's heard them in court, our prosecutors, you know, had their arguments and provided information to the Court, the defense had a packed room, had their opportunity to argue to the judge, and the judge made a decision on both of these two young men based on all the information, what the sentence should be. And this is an experienced jurist, Judge O'Neal, who's been a terrific judge, made this looking at the bigger picture of what happened here and having all the information, and then to learn Sunday night from a reporter that this happened is just outrageous. And you know, I have to say, I was shocked myself. Our office did not know that a petition had been filed, did not know this was under consideration, had no input in the process. And I learned about it from a friend who sent me a text. And from that point on, I started contacting people in our office to try to reach the victim's family. But they had already been notified by a reporter. So we had no input into this. So, you know, all the governor heard from was whatever was presented, which by the way, we still don't know was presented. I don't know what information he acted on. And it's -- I think it's -- diminishes the justice for Luis Santos. It really under mines our system of justice. This is what makes people suspicious or distrusting of government, when things like this happen. You know, with no -- no out in the open, with no due process for everyone. This family was re-victimized once again.

CAVANAUGH: I'm speaking with San Diego County district attorney Bonnie Dumanis. We're talking about the commutation of the sentence for Esteban Núñez in connection with the fatal stabbing of a student near San Diego state university. And we're welcoming your phone calls and your input on this. 1-888-895-5727. Now, this -- the incident has been described by some as a drunken brawl. Would you characterize it that way?

DUMANIS: No, I wouldn't. I think they went looking for a fight, they brought knives to the fight, and they were upset that they weren't allowed into this party. But whatever the incident is, this is not information that was presented, the entire big picture, to the governor. And I think that's what's critical in this. And you know, Maureen, you mentioned earlier, sort of the process, usually commutation, the governor has the absolute right to do that. But it usually is done when someone has served a lengthy prison sentence, there are some extenuating circumstances that have come up, like they've done well in the process, have done, you know -- gotten their GED or school, are remorseful, all those things. And then the governor gets information and makes that decision. This was an agreed upon -- I've never heard of a case where a commutation occurred where the parties came to an agreement. Of it was arranged so the judge had up to 16 years, and the judge chose 16 years. It had been -- they made their arguments to the judge, and they also made their arguments that this was unfair, and all the things that were mentioned in the governor's comments. The judge said, you knew what the options were, you pled guilty, this is what the sentence is. They, peeled the judge's decision by way of a writ, that was denied. And it is now pending on appeal. So they ripped it out from the Court process, and I think is fundamentally unfair.

CAVANAUGH: A lot of people want to join our conversation, Bonnie. But I want to ask you first off, why do you think this was done in the way that it was done?

DUMANIS: You know, I don't know. I do want to say, though, because I think in all fairness to the governor, he called me yesterday and said that he regretted not having reached out to our office and to the family of the victim in advance of what happened. And I appreciate that he did that. I mean, I think that tells a lot about him to do that. But none the less, as I said to him, we'll agree to disagree about what the ultimate outcome was and I appreciated his comments. But the fact of the matter is the family was -- and that was my initial reaction in this whole process, was the family. And you know, especially after we just passed Marcy's law, the victim's rights, a constitutional right to include them in the process all the way along the way, it flies in the face of that. . And I just feel awful for this family.

MAUREEN CAVANAUGH: We are taking your calls and comments, 1-888-895-5727. You can also go on-line to KPBS.org/These Days. My guest, San Diego County district attorney Bonnie Dumanis of let's take a call, Serena is calling from Mission Hills. Gorge, Serena, welcome to These Days.

NEW SPEAKER: Good morning. Thank you very much for taking my call, good morning, Ms. Dumanis.

DUMANIS: Good morning.

NEW SPEAKER: I just wanted to say that I do think it was political cronyism. I remember a comment that was allegedly made by Esteban Núñez when he was -- two law enforcement officers when he was arrested, allegedly said this will never if to trial. My father is the leader of the assembly. And it is a good old boy thing. And again, that just -- I'm sorry. I'm really emotional about this. That completely insulates and dishonors the family of the victim. Thank you. Of.

CAVANAUGH: Well, thank you Serena for the call. That was a widely quoted quote from Esteban Núñez. Did your office take that as something that actually happened or was that just a rumor?

DUMANIS: I think we've heard that. But it wouldn't -- that wouldn't matter to us in the process. I think Serena makes her points, which is what the danger of doing something like this in the very last days in the very last hour of an administration, it suggests -- it let's people draw the inference no matter whether your purpose was pure of heart or your intentions good, it under mines the very quality of the justice that we have because it makes people feel, no matter what, that this could be what happened.

CAVANAUGH: I see. Let's take another call, as I said, 1-888-895-5727 is the number to call. Miriam calling from San Diego. Good morning, Miriam, welcome to These Days. Of.

NEW SPEAKER: Hi, good morning. Good morning, Mrs. Dumanis.

DUMANIS: Good morning.

NEW SPEAKER: I disagree with what the governor did. My son was stabbed right before Christmas, and he almost died. And as a victim's family, I want to see the guys that did it to be incarcerated for a long, long time. You know, the pain and suffering that I endured during the holidays was horrible. And I feel for the family of the victim because they didn't consider the way they felt. I think that this young man, he used his father's influence to get off. And I think that they should have asked the victims how they felt.

CAVANAUGH: Well, Miriam, I hate to cut you off there, no, Miriam. I want to get a reaction to what he said. And thank you so much for the call. And I'm sorry that you had to go through that, especially during the holidays. I'm wondering, have you spoken with the Santos family and heard their reaction to this?

DUMANIS: I haven't personally reached out to them. Jill DeCarlo, who is the actual trial attorney has been talking with them regularly because she feels so much for them. We all feel so much for them. And I probably will be talking -- I've murder them though, on TV, I've heard them on the radio. They are tremendously full of pain, anger, feeling betrayed in the system, understandably so. And Miriam, you know, really as a victim's family knows what that feels like of it's just so hurtful to think that your son's life is devalued like that. Of he deserves -- Núñez deserves the 16 years of everybody that looked at this in the light of day made that determination. And I think, you know, the victim's family has a right to be angry about this.

CAVANAUGH: And yet the defense attorneys say that the superior court judge, Robert O'Neal, suggested that he would give Esteban Núñez a lesser sentence than the other subject, Ryan jet, because Núñez was not the one who stabbed the victim. And when it came to sentencing time, both of these defendants got the same sentence. And so the basis of the appeal for Esteban Núñez was that there might have been some sort of political pressure placed on the judge at the time of sentencing, not to show favoritism for someone who had a politically well connected father.

DUMANIS: Well, I look at it as a former judge. And when an agreement is struck between the parties, everything is put on the record when the person pleads guilty. You ask them about what they did, there is a portion that says, have any other promises been made to you? So the judge would have said, you face up to 16 years in prison, you know, there is a range, but you understand that these are the possibilities? Has anyone made you any other promises? And the answer was no. The judge made it clear when they made those very same arguments to the judge that that was not the case. Our folks that were are there, both Ms. DeCarlo and Rick Clabby, argued against it because they were there and a part of all of these conversations. So it was quite clear that the range was always 16 years, he knew that was the possibility, he decided to pled guilty based on that, then they argued these things, the judge denied it, it went up on a writ to the appellate court, that was denied, and then there was an appeal pending. So they went around the Courts, they went around the District Attorney's Office and the family to the governor, and that just wasn't they should have done.

CAVANAUGH: My guest is San Diego County district attorney Bonnie Dumanis, taking your calls at 1-888-895-5727. Bill is calling from La Jolla. Good morning, bill, and welcome to These Days. Of.

NEW SPEAKER: Oh, good morning Maureen. Good morning Ms. Dumanis.

DUMANIS: Morning.

NEW SPEAKER: My questions, I think, have been answered because I wanted to know who the knife wielder was. And my second question was, if there were more than two people involved, and I guess there were, I was wondering how it would be justified that one of the knife wielders but not the others had a reduction. But if I could make one observation, maybe two.

CAVANAUGH: Sure.

NEW SPEAKER: I happen to know judge Robert O'Neal. Heave is one of the finest and fairest human beings I have ever known. The idea that he would succumb to political pressure from any source is just laughable, as far as I know, knowing the man's integrity. And his fundamental humility. But one of the things I think I have to say is I think Ms. Dumanis' problem is really with the constitution of the State of California. A governor, whether we like it or not, has the constitutional authority to refute a plea agreement, a sentence of any type, and make what he feels is an equitable decision. I don't like this because of the smell of political favoritism. But he was exercising a constitutional power that he had. Many of us in another context feel that his defaulting, his and our current governor's defaulting from defending the vote of the people of the State of California on proposition A is a much more egregious violation.

CAVANAUGH: Uh-huh.

NEW SPEAKER: And yet very few people are criticizing him about that.

CAVANAUGH: Bill, thank you very much.

DUMANIS: Bill, I just want to first set the record straight about the knife wielder. Both Núñez and Jet had knives. And there was an argument that Jet may have been the one that did the ultimate thrust into Luis. But there was evidence that was, you know, could be argued on either side. But that was -- it's not known, really, who the actual stabber was. It is known, however, that Núñez stabbed two other people. And they were fortunate to live, and it is known that they were in this together. So he's responsible for that. So I hope that answered the question. And with respect to the constitutionality, I think I said earlier that the governor does that have right. And I think actually my quarrel is with the statutes that are used to implement that. Because if there is a pardon that is going to be made, they do have to notify the prosecution by law. And there's maybe some argument that even for a commutation, but it's less clear, and I think we need a law that says when the governor is going to exercise that power, he must notify the victim's family and the prosecutor, not he, the parties must notify them so they can be heard. Of and that's my quarrel here. If the governor had received input from us, had received input from the family, and then received input from Núñez's family, then I wouldn't have liked the decision, but I would have felt like everybody had an opportunity to be heard. And that's not the case here. That's the failing here, I know, is the process, not the ultimate right.

CAVANAUGH: And to be clear, do you have any legal redress now or is this the final word?

DUMANIS: Well, I'm in the clear about that. We are referring that. We have our best minds looking at it. And I think it's probably unlikely that we have any recourse because it is a constitutional right. But we're going to see because of Marcy's law was not enacted when this constitutional -- or any of the other cases that were held. So we're going to look at it, but you know, it is a constitutional right of the governor. So I suspect that in the end, we won't be able to do anything. But if there's a way, we'll find it and we'll act on it.

CAVANAUGH: I'm speaking with San Diego County district attorney Bonnie Dumanis, our number is 1-888-895-5727. Francis is calling from La Jolla. Good morning, Francis, welcome to These Days.

NEW SPEAKER: Hi, Maureen of thank you very much. I wanted to say that I think the District Attorney's Office acted properly and admirably in every respect in this very hideous case, and that the LA Times yesterday had a full story about what is on the record in terms of the day of the crime and the legal proceedings following. I, like everyone else, am shocked at this commutation and wanted to ask district attorney Dumanis, is there no legal resource for trimming the governor's constitutional right to do what he did in this instance? The constitution has been amended and changed over time, and it seems to me that this -- there should be general interest in trimming his or her ability to do this kind of thing ever again.

CAVANAUGH: Francis, thank you.

DUMANIS: I'm not a big fan of amending the constitution. I am a big fan though, as I said earlier, about changing the statutes that implement that exercise of power. Because Francis, I think there are occasions when mistakes are made or people have changed and one might, for instance, I think there was another case, and I don't know enough about it, but I can envision where someone was a victim of a pimp, for instance, or had been battered their entire life and abused by this person, or in battered women's cases, where they have turned their lives around after a long period of time, that you might want to a governor to exercise that. Again, however, the option for the other side to be heard, I think, is important. So my suggestion would be that we work together to change the statutes that say the governor -- and make it a requirement that the defense notify or the governor's office notify the prosecution office and the victim's family before moving forward on one of these things. And by the way, I do want to reflect the fact that the Núñez family also accused me and our office of politicizing this and we did no so much thing. We treated this case as every other case, just like judge O'Neal did. He was not influenced, and in fact some would argue because we did reach an agreement that he received the benefit of things. And that was his record. I mean, those are the things we looked at, which is what the break he got when he got the agreement to begin with.

CAVANAUGH: I want to pursue this just a lot bit more with you, though, because what the proper place is for pardons and commutations in the legal system. Because, after all, any one of these cases you could have said, you know, the person had their day in court, they made their plea, they made their case, a jury decided, a judge sentenced, and so why at any step along the way in any case should someone else be able to come in and overturn or lessen a sentence or -- what is place of pardons? We need to have lost kind of this grasp that there are some cases in some instances that actually are -- need that kind of a leeway that a governor or head of state has to turn things around a little bit.

DUMANIS: I think it's a recognition in the constitution that we are all imperfect human beings, that sometimes things change, that there are other circumstances. And I think we want to keep that in place because not only do we put ourselves in the shoes -- in the hearts and minds of the families of the victims, but also there is another family, there is another person to consider. And again, I think after years in prison for some cases, there may be some consideration that you would want. Not necessarily a pardon but a commutation or a consideration, where you might say this person is receiving life without possibility of parole, but I'm gonna give him an opportunity to come in front of the parole board, so I'm gonna make that a life sentence that gives them that opportunity, which actually helps in the prisons to give them something to work towards, and that sort of thing. But it shouldn't be, you know, done lightly. It should be done in the open, you upon, light of day, so that the public knows, so that everybody has confidence that what is going on is really looking at everything to make that ultimate decision, and it's really down the road. It's not right after a decision was made by a judge. That's second guessing the judge, that's putting yourself in the judge's shoes and I don't think is ever a good idea.

CAVANAUGH: I'm just wondering when governor Schwarzenegger called you to sort of reach out and say that he apologized for not contacting your office before the announcement was made, did he give any reason that he didn't contact you before?

DUMANIS: Well, you know, I didn't really get into a long discussion with him because there was nothing at that point to discuss. He can't change that decision, he's no longer the governor, and that sort of thing. I appreciated the fact that he felt badly about the family because he has a family of his own. I just think if he could have taken it back to look at it, I don't know that it would have changed the decision, but I think he wished that he had, you know, gotten input from all those involved before making that decision, and I think he recognized that. And I think that speaks highly of him. I still disagree with the decision. But I respect the fact that he reached out and he asked me to express that to our staff that worked so hard as well as to the family, which we have done.

CAVANAUGH: Now right before we leave, we only have a couple of minutes left. I do want to change gears just a bit because, Bonnie Dumanis, you were sworn in for your third term in office as San Diego County district attorney. So what are your big accomplishments over the past eight years, and how will that inform your newest term in office? What will you be pursuing?

DUMANIS: Well, first, I don't have big accomplishments, our office has big accomplishments. And even in the office from attorneys to investigators to paralegals, IT staff, everybody that works on a case is doing yeoman's work especially in this day and age of budget. And I appreciate what they do, they've maintained a consistent 94 percent conviction rate. We've helped craft laws that put sex offenders for a long time of we were at the forefront of Jessica's law, we were at the forefront of Chelsea's law. Our office did a wonderful job in coming together with our law enforcement on Chelsea king, amber DuBois, on that case. Those are just cases that highlight. But in the background, our people that do victim services, victim advocacy, child abduction. Of we go and we get children back to families. Witness relocation in dangerous cases, we've done 19 gang injunctions, targeted gang activity, held them accountable, and you see the results because our gang activity and gang homicides are down tremendously, where prosecuting cross border cases. Maureen, I could go on and on and on. And we've also, one of the things I'm proudest of also is the reentry program that we've done. The land scape of prosecution is changing from just being reactive to being proactive and to being a leader in the community. We're talking with Kamala Harris who is the new AG, and she and I have worked together on reentry issue. She has a before prison reentry program, I have an after one, and I think together I'm on her transition team with chief Lance down and many others, we're gonna move that even more forward. And that's how it's gonna help our economy.

CAVANAUGH: San Diego County district attorney Bonnie Dumanis. Thanks for coming in and talking with us today.

DUMANIS: Thank you.

CAVANAUGH: I'm sorry that we didn't get everybody on the air who wanted to comment. Please go on like, KPBS.org/These Days. And stay with us for hour two of These Days coming up in just a few minutes. Here on KPBS.