Former Gov. Arnold Schwarzenegger’s last-minute order to commute the prison sentence of convicted felon Esteban Nuñez was met with angry fatalism by commentators and voters around the state.

Newspaper editorials cried foul, accusing the governor of political cronyism and calling for reform or revocation of the governor’s actions. San Diego’s two top prosecutors expressed their own outrage this week, vowing to scour the state’s legal remedies, searching for a solution to the commutation of a powerful politician’s son.

But, as the week drew to an end, a consensus has emerged among those studying the legal options available to the Californian people in the Nuñez case: There are none.

The governor’s power to overturn the decision of a Superior Court judge appears irrefutable: The decision can’t be appealed, repealed or rescinded. It almost certainly can’t be challenged in court and Schwarzenegger’s replacement, Gov. Jerry Brown, can do nothing about his predecessor’s actions, according to legal scholars and attorneys around California.

The legal theories bounced around by local attorneys in the wake of the governor’s announcement ranged from challenging Nuñez’s right to appeal to the governor, considering he had already signed a plea agreement, to questioning whether the governor’s action clashes with Marsy’s Law, a constitutional amendment passed in 2008 that aims to give victims of crime rights and due process.

None of those theories have so far checked out.

While it may not be possible to overturn the Nuñez commutation, however, there are other options available to prosecutors and lawmakers whose noses have been bent out of shape by Schwarzenegger’s actions. By fine-tuning legislation that limits the governor’s power to commute criminals’ sentences, District Attorney Bonnie Dumanis hopes to stop a similar case from happening again.

Dumanis, who said she has a team of attorneys looking at both legal and legislative remedies, said her office already plans to write legislation. She said she has already approached local lawmakers to sponsor a future bill targeting the gubernatorial power.

Esteban Nuñez, the son of former State Assembly Speaker Fabian Nuñez, pleaded guilty to involuntary manslaughter in 2009 in relation to the stabbing death of 22-year-old Luis Santos in a drunken fight near San Diego State University. Nuñez was sentenced to 16 years imprisonment, a sentence he was in the process of appealing when Schwarzenegger took the extraordinary step of reducing his sentence to seven years.

In California, the governor’s right to pardon a criminal or commute a criminal sentence is enshrined in the constitution. But that right’s not absolute. The constitution states that, when pardoning, commuting or reprieving a criminal, the governor must follow “application procedures provided by statute.”

The California Penal Code, which defines many of those application procedures, states that when a criminal applies to the governor for a pardon, he must inform the District Attorney’s Office that the application has been made. The reason: To ensure governors are told both sides of the story — from prosecutors as well as defense attorneys — before they decide to commute a sentence or pardon a criminal, said Dan Kobil, a law professor at Capital University in Ohio and a clemency expert.

However, in California the requirement to inform the D.A. doesn’t currently apply to commutation. Dumanis said nobody told her Nuñez was applying to Schwarzenegger to reduce his sentence.

“I still have not seen any of the papers filed, or any of the information that was provided to the governor for this decision,” Dumanis said. “I think what was accepted as the truth was the defense’s version of things, that’s why it was so important that we should have had an opportunity to talk about the facts.”

Dumanis told KPBS radio earlier this week that Schwarzenegger called her in the wake of the Nuñez announcement.

“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,” she said.

Please contact Will Carless directly at will.carless@voiceofsandiego.org or at 619.550.5670 and follow him on Twitter: twitter.com/willcarless.

Will Carless

Will Carless was formerly the head of investigations at Voice of San Diego.

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