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In re Nunez

April 30, 2009; as modified May 27, 2009


Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, William R. Froeberg, Judge. Petition granted. (Super. Ct. No. 01ZF0021).

The opinion of the court was delivered by: Aronson, J.



Antonio de Jesus Nuñez filed a petition for habeas corpus in the California Supreme Court on grounds, inter alia, that his sentence of life in prison without parole (LWOP) for kidnapping for ransom (Pen. Code, § 209, subd. (a))*fn1 - an offense he committed when he was 14 years old - constitutes cruel and unusual punishment under the Eighth Amendment or, alternatively, cruel or unusual punishment in violation of article I, section 17, of the California Constitution. Concluding Nunez established a prima facie case for relief, the Supreme Court ordered Nuñez‟s prison custodian to show cause before this court justifying the constitutionality of Nuñez‟s LWOP sentence.*fn2 After we placed the matter on calendar, petitioner and the Attorney General submitted briefs and argued the matter.

Petitioner contends his LWOP sentence violates article I, section 17‟s proportionality requirement based on, among other factors, his youth, the lack of injury to any victim, and the circumstance that LWOP is not a sentencing option for kidnappers his age who - unlike petitioner - murder their victims. We agree that under our state Constitution the LWOP sentence imposed on petitioner is void both in the abstract for society‟s most youthful offenders and as applied to petitioner in particular. We do not reach this conclusion lightly. As stated by our Supreme Court in In re Lynch (1972) 8 Cal.3d 410, 414-415 (Lynch): "We recognize that in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone. [Citations.] [¶] Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment, adopted by the people of this state as an integral part of our Declaration of Rights. It is the difficult but imperative task of the judicial branch, as coequal guardian of the Constitution, to condemn any violation of that prohibition." When such a showing is made, as here, "we must forthrightly meet our responsibility "to ensure that the promise of the Declaration of Rights is a reality to the individual.‟ [Citation]." (Id. at p. 415.)

And because petitioner is the only known offender under age 15 across the country and around the world subjected to an LWOP sentence for a non-homicide, no-injury offense, we also conclude his severe sentence is so freakishly rare as to constitute arbitrary and capricious punishment violating the Eighth Amendment. Accordingly, as required by the state and federal Constitutions, we vacate defendant‟s LWOP sentence on his kidnapping conviction and remand to the trial court for resentencing.


We set out the facts of petitioner‟s offense as stated in our opinion rejecting his direct appeal from his conviction, in which he did not raise the constitutional claims he now asserts. (People v. DeJesus Nunez (Dec. 21, 2004, G032462) [nonpub. opn.] (Nunez I).) As will become apparent, the background circumstances revealed in petitioner‟s habeas petition present a very different view of petitioner‟s culpability.

A. The Facts of the Offense as Recited in our Earlier Opinion on Direct Appeal "The Kidnapping of Delfino

"The Moreno brothers, Delfino, Abel, and Isaac, had been promised $200 per person to transport 11 illegal immigrants from Arizona to California. The brothers left Arizona in two vehicles: Abel drove a white van with Isaac as a passenger along with seven illegal immigrants; Delfino drove a sport utility vehicle loaded with four illegal immigrants. They planned to arrive at Santa Ana in the early morning hours of April 24, 2001, and to meet at Delfino‟s apartment.

"Delfino arrived first and waited in the parking lot for Abel and Isaac. According to the prosecution‟s witnesses, as Abel pulled up, Perez, Nunez, and one other person got out of a white parked car and, armed with an AK-47 rifle, a shotgun, and a handgun, approached Abel‟s van. The three men surrounded the van and yelled at Abel to get out of his car. But Abel put the van in reverse and fled. Perez, Nunez, and the third person started shooting at the van. Perez was shooting with the assault rifle and Nunez with a handgun. Abel and Isaac escaped, although one of the van‟s side windows was shattered by a blast and Abel suffered cuts on his face and arms.

"Delfino was not so lucky. Again, according to the prosecution‟s witnesses, Perez pushed the AK-47 into Delfino‟s ribs and Nunez held a gun to Delfino‟s head, forcing him into the back seat of the waiting car. Two other persons were in the front seats. Perez and Nunez sat on either side of Delfino in the back seat. Perez took Delfino‟s cell phone away from him, and the car was driven over a series of freeways to Los Angeles. Upon leaving the freeway in Los Angeles, Delfino‟s face was covered with a black ski mask and he was taken to an abandoned apartment where defendants tied his hands and feet.

"Meanwhile, after making his escape, Abel called Delfino‟s wife and asked her to check on Delfino. She had just heard the shots, and when Abel called to tell her what had happened, she called 911. While on the phone with the dispatcher, she received another call on her call waiting service and the dispatcher instructed her to answer it. A male voice told her "they had taken [Delfino].‟ When officers from the Santa Ana Police Department arrived at the apartment complex, she gave them Delfino‟s cell phone number. An officer called the number, spoke to a male in Spanish, and asked him where Delfino was. The person on the phone responded that Delfino was okay, and asked who was calling. The officer responded by identifying himself as a Santa Ana police officer. The person on the phone hung up, and subsequent calls were not answered.

"The Ransom Demand and Negotiation

"The police attached a listening device to Abel‟s cell phone to monitor any calls. Shortly after 3:00 o‟clock that afternoon, Abel received a call from the kidnappers and they demanded $100,000 and a kilo of cocaine by sunrise the next morning in exchange for Delfino‟s return. Delfino got on the phone briefly, but only greeted Abel before the caller took the phone back. When the caller got back on the phone, Abel negotiated the ransom price-two kilos of cocaine and $50,000. An hour later, Abel received another call. This time, Delfino told Abel he was "Okay,‟ and asked, "Is everything okay there?‟ Abel asked the caller for more time to obtain the money because the banks were closed. After another series of phone calls, by late the next afternoon, Abel and the caller had agreed to meet at a Pavilions store in Long Beach to exchange Delfino for the ransom. The kidnappers told Abel they would be in a green Cherokee. But the exchange never took place. Delfino, who was driving around with the kidnappers while they were discussing where to meet with Abel, said Perez and Nunez left the Pavilions area because they said, "there were narcos.‟

"The Chase

"Sergeant Ruben Ibarra, Investigator Carol Salvatierra, Officer John Rodriguez, Investigator John Garcia, Officer Paul Hayes, and Investigator Dean Fulcher, all of the Santa Ana Police Department, assisted in the surveillance of the Pavilion‟s parking lot. Ibarra was driving an unmarked Chevrolet Venture with Salvatierra as his partner. Ibarra was wearing shorts and a t-shirt, but he was also wearing a bullet-proof vest that had the word "POLICE‟ inscribed across the front. Salvatierra was wearing a similar vest, but it was not marked with the word "POLICE.‟ Rodriguez was driving a Chevrolet Astro Van with Garcia as his partner, and Hayes was driving a Dodge Intrepid with Fulcher as his partner.

"As Ibarra and Salvatierra were leaving the parking lot at the Pavilions store, Ibarra noticed an Oldsmobile traveling southbound on Woodruff Street. Ibarra turned and pulled into the lane next to the Oldsmobile. Ibarra‟s suspicion was aroused, even though he had been looking for a green Jeep, because the occupants of the Oldsmobile were looking around nervously, the driver was talking on a cell phone, the driver matched the description of one of the kidnappers, and the passenger in the back seat looked "stiff‟ and was not looking around. Ibarra continued to follow the car through a residential area.

"Contacted by radio, Rodriguez, Garcia, Hayes and Fulcher joined the pursuit. The Oldsmobile eventually turned against traffic to get onto the southbound 405 freeway. The officers chased the Oldsmobile to the Seal Beach Boulevard exit where the Oldsmobile turned off the freeway. Near the end of the exit ramp, the Oldsmobile suddenly stopped. Ibarra stopped immediately behind it. Suddenly, three to six shots were fired from the Oldsmobile in the direction of Ibarra‟s car. The rear window on the passenger side of the Oldsmobile was blown out and Officer Rodriguez, who had stopped his car behind Ibarra, saw a muzzle flash coming from the passenger side of the Oldsmobile. The driver‟s window on Ibarra‟s vehicle was shattered. Delfino, who was sitting handcuffed in the back seat of the Oldsmobile, testified that Nunez was firing the assault rifle from the front passenger seat.

"The chase moved back to the northbound 405 freeway. Officer Hayes‟ vehicle became the lead. As the chase continued, a marked police car containing Officers Holderman and Saunders joined the chase near Palo Verde. As the Oldsmobile left the freeway at Woodruff, the marked police car became the lead vehicle. Its overhead red and blue lights were on and its siren was sounding. According to Delfino, at this point Perez told Nunez to shoot the police. At Los Coyotes Boulevard eight to 10 shots were fired from the passenger‟s side of the Oldsmobile at the marked police car. Numerous bullet holes were later found on the front hood, right door frame, right sideview mirror, and inside of the car including a bullet hole one foot from the location of Holderman‟s head and four to six inches from Saunders‟ head. Ibarra‟s vehicle, which had continued the chase after the first shooting, was also struck.

"The chase ended when the Oldsmobile crashed at the end of Los Coyotes on Carson. Nunez and Perez ran from the vehicle. Delfino was found sitting in the back of the car and appeared "pretty shaken up.‟ His hands were handcuffed in front of him. An assault rifle and a handgun were recovered from the front passenger side of the Oldsmobile. Nunez and Perez were chased down and arrested. When Perez was arrested he had a Ruger nine millimeter handgun in his waistband and was carrying Delfino‟s cell phone. Perez‟s jacket was also recovered. A magazine for the nine millimeter pistol was found inside the jacket.

"Defense Evidence

"Perez called Christian Eaton to testify he had observed Abel‟s van being chased by a person shooting a nine millimeter handgun. As Abel‟s van sped away, Eaton testified he heard one shot fired from the driver‟s side of the van. Perez also called Delfino to testify that during his confinement in the apartment, Nunez kept a gun pointed at him.

"Nunez called his mother to testify he was at home with her on the nights of April 23rd and 24th, and was still at home when she woke up the mornings of April 24th and 25th. She also testified he was with her continuously from the time he woke up on April 25th until 5:00 p.m., when she dropped him off at his uncle‟s house.

"Nunez testified in his own defense. He said he was home with his mother at the time of the initial kidnapping. Nunez had never met Perez or Delfino before the kidnapping, but he had seen them around the neighborhood. After being dropped off at his uncle‟s house, Nunez went to a "ditching‟ party with a friend. Delfino was at the party and so was Perez. Delfino was not in handcuffs. Delfino approached and asked Nunez if he wanted to make some money. Nunez agreed, so Delfino told Nunez he wanted him to pick up some money and drugs from Deflino‟s brothers and to act as if he [Delfino] had been kidnapped.

"Before the exchange took place, however, Delfino pointed out that a van was following them. The chase ensued. At the end of the off-ramp at Seal Beach Boulevard, Nunez fired the assault weapon at the following car because he "was scared . . . that they‟re following us.‟ Nunez explained that the blast of the gun caused a ringing in his ears, and he could not hear very well after that. He professed neither to have seen the marked police car nor to have heard the siren. He shot the second time because he saw two vans following them and he thought they were "gonna try and do something to us.‟ During the second shooting episode, his vision was impaired because the rear window was shattered, and he was shooting through the open hole in the window." (Nunez I, supra.)

B. Petitioner's Background and Lesser Culpability, According to His Habeas Petition

Nuñez grew up in a dangerous South Central Los Angeles neighborhood where, according to his mother and father, as many as 10 people were shot and killed nearby and the sound of gunshots was not uncommon. His mother would force her children to the floor for fear of shots hitting the house. Nuñez wanted his mother to flee the violence in the home. He witnessed weekly and sometimes nightly domestic violence inflicted by both parents on each other and his four siblings, including an incident at age eight where he intervened to protect his mother but his father threw him aside. Nuñez also regularly heard each parent threaten the other with death or violent injury and watched on one occasion as his mother feigned a heart attack to stop her husband‟s ...

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