District Attorney Bonnie Dumanis is pretty livid about this whole Esteban Nuñez debacle.

The DA thinks the whole affair is unfair, secretive and underhanded. And, she said, she’s had her best lawyers searching for a legal remedy to the whole mess.

They may have found one.

Laura Tanney, the head of the district attorney’s appellate division, told me about one of the theories she has been pursuing since Arnold Schwarzenneger commuted Nuñez’s voluntary manslaughter sentence from 16 to seven years. Her idea is that commutation is a form of pardon. That’s important because, when a criminal applies for a pardon, the law requires that the district attorney be notified.

The DA says didn’t know about Nuñez’s commutation until after it had already happened, robbing her of the chance to make her case to the governor.

Under the California constitution, the governor has three powers he can exercise on prisoners: He can commute (shorten) their sentence, he can pardon them completely, or he can reprieve them (put their sentence on hold).

But the governor’s powers are limited by statute. Before he grants a reprieve, pardon or commutation, prisoners have to abide by certain rules laid down by law.

I examined this on Sunday, pointing out that when a prisoner applies to the governor for a pardon, they have to let the DA know they are doing so. That’s so the DA is given an opportunity to tell the governor their side of the story.

However, the statute only seems to apply to pardons, not to commutations or reprieves. Here’s what the law says:

4804. At least 10 days before the Governor acts upon an application for a pardon, written notice of the intention to apply therefor, signed by the person applying, must be served upon the district attorney of the county where the conviction was had, and proof, by affidavit, of the service must be presented to the Governor.

Seems pretty cut and dry right? Tanney doesn’t think so.

“I’ve not yet conceded that the notice requirement only applies to full pardons, since a commutation is a partial pardon,” she told me earlier.

Interesting.

So Tanney’s considering whether she could argue that the word “pardon,” doesn’t just mean pardons, but also means commutations (and, presumably, reprieves as well).

I took a close look at the Penal Code section that deals with pardons, commutations and reprieves.

All the way through, the law seems pretty clear: Sometimes it refers to “pardons” on their own, sometimes to “pardons and commutations,” sometimes to “commutations” or “reprieves” on their own, and sometimes to all three. The law seems to differentiate between the three powers of the governor.

But I’m no lawyer.

Tanney said she’s looked all the way back to 1849, when the California Constitution was written. She’s still looking into the merits of the theory, she said.

She also pointed out that when prisoners apply to the governor for commutation they use the exact same form they would use if they were applying for a pardon.

But, assuming she and her team can put together a good legal argument, how can Dumanis seek to challenge the commutation of a governor who’s now left office anyway?

What’s the proper legal arena for that? I asked Tanney. The appeals court?

“I’m not prepared to talk about that just yet,” she said.

Nuñez, the son of former Assembly Speaker Fabian Nuñez, was involved in a drunken brawl in 2008 near SDSU that left one man dead. Nuñez pleaded guilty to manslaughter, avoiding a possible life sentence if he had gone to trial on a murder charge.

Today, two California lawmakers announced that they will be sponsoring new legislation aimed at refining the process by which the governor exercises his constitutional powers.

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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