Judge Denies Motion for Mistrial in Torture-Murder of 8-Year-Old Boy - NBC Southern California

Judge Denies Motion for Mistrial in Torture-Murder of 8-Year-Old Boy

Isauro Aguirre was convicted of first-degree murder and faces a possible death sentence for killing Gabriel Fernandez

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    Watch: Prosecution Delivers Closing Argument

    Prosecutor Jon Hatami makes his closing argument Monday Nov. 13, 2017 in the torture-murder trial of 8-year-old Gabriel Fernandez. (Published Monday, Nov. 13, 2017)

    As a Palmdale man convicted of the torture-killing of his girlfriend's 8-year-old son awaited the penalty phase of his trial, a judge denied defense motions Monday for a mistrial and for the lead prosecutor to recuse himself.

    An attorney for Isauro Aguirre argued that statements made to the media by Deputy District Attorney Jonathan Hatami following the verdict last Wednesday were evidence of a conflict that would prevent the 37-year-old onetime security guard from getting a fair penalty trial.

    "The various statements that the prosecutor made to the media indicating his own experience as a child abuse victim, his display of emotion ... wiping tears away from his eyes" were evidence of Hatami's inability to be "even-handed" in doing his job, according to defense attorney John Alan.

    Los Angeles Superior Court Judge George Lomeli denied the motion, saying most of what Hatami said outside court had already been said during the trial and that the jury had been instructed not to watch news coverage of the case.

    However, Lomeli warned it was "not wise or prudent to make any comments" that could jeopardize the case, adding, "This is not over." 

    Aguirre was convicted of first-degree murder and faces a possible death sentence for killing Gabriel Fernandez, who was routinely beaten, shot with a BB gun, forced to eat cat feces and sleep ,while gagged and bound, inside a small cabinet. Along with convicting Aguirre of murder, the seven-woman, five-man jury found true a special circumstance allegation of murder involving the infliction of torture.

    The penalty phase of the trial -- when the panel will be asked to recommend whether Aguirre should be sentenced to death or life in prison without the possibility of parole -- is set to begin next Monday.

    One witness scheduled to be out of the country during the penalty proceedings testified Monday that she had supervised Aguirre when he worked as a caregiver at a senior assisted living home.

    Donna Hogg-Allen said Aguirre was a good employee in a job that required compassion and empathy.

    "He was soft-spoken, he listened to what was going on with them," Hogg- Allen said of Aguirre's work with residents. "He was just a nice guy, he was pleasant ... hard-working." 

    Aguirre was a guest at Hogg-Allen's wedding and also dated her daughter.

    When she heard about Gabriel's death on the news, Hogg-Allen said she was "shocked, stunned, appalled. I just couldn't believe it. It made no sense to me ... (this was) not the person that I knew, not the person that came to my house." 

    Hogg-Allen said she couldn't bear to read about the case, but, during his cross-examination, Hatami offered some details, including that Aguirre had admitted to punching Gabriel in the head 10 times. Then the prosecutor asked if she would be willing to leave her grandchildren in Aguirre's care.

    "Obviously he isn't capable anymore of caring for anybody," Hogg-Allen said.

    Gabriel's mother, 34-year-old Pearl Sinthia Fernandez, is still awaiting trial for the boy's May 2013 death. Prosecutors are also seeking the death penalty for her.

    After the verdict was read last week, Hatami embraced the boy's biological father in court. The prosecutor told reporters later that what the two discussed was "private," saying, "I'm a dad and he's a dad." 

    "Some justice, I think, has been served by this verdict, and maybe some closure can be felt by Gabriel's family as far as at least they feel that the system ... is trying to make some things right, and maybe this is a small part of that, maybe,'' said Hatami, who described himself as a "survivor" of child abuse at age 4 and 5.

    One of Aguirre's attorneys, Michael Sklar, acknowledged during the trial that Aguirre killed the boy, but told jurors in his closing argument the defendant "acted in a rage of anger followed by an explosion of violence'' and not with the deliberation and premeditation required for first-degree murder. He argued that jurors should convict his client of the lesser count of second-degree murder.

    Hatami called Aguirre an "evil" man who "liked torturing" the boy and did so systematically in the months leading up to the child's death. The prosecutor began his closing argument by displaying a photo of Gabriel's battered body lying on an autopsy table -- covered in injuries head to toe -- as evidence of Aguirre's intent to kill the boy.

    "You can't believe a person in our society would intentionally murder a child,'' Hatami said, comparing the abuse to that suffered by a prisoner of war.

    "Believe it, because it happened. This was intentional murder by torture,'' he told the jury. "Do not go back in the jury room and make excuses for the defendant ... this had nothing to do with drugs ... this had nothing to do with mental health issues." 

    Hatami said in the months leading up to the boy's death, Gabriel was "being starved and punched and kicked and abused and beaten ... he was belittled, bullied and called gay. His teeth were knocked out. He was tied up every night in a box. ... Gabriel was dying.''

    The prosecutor painted a picture of Aguirre sleeping in a comfortable bed night after night while, in the same room, Gabriel was bound and gagged inside a small cabinet with a "sock in his mouth, a shoelace (tying) up his hands, a bandanna over his face'' and his ankles handcuffed.

    He alleged the 6-foot-2, 270-pound defendant punched and kicked Gabriel hard enough to dent the walls of the family's apartment and leave the boy unconscious, then -- with help from the boy's mother -- hid some of the child's bloody clothing and moved a picture to cover up one of the biggest indentations before calling 911.

    The defense contended that Aguirre never meant to kill the child, but Hatami told jurors in his summation of the case that Aguirre hated the boy because he thought the child was gay. The couple only took him from his maternal grandparents so that they could collect welfare payments for his care, the prosecutor said, telling the panel that the defendant "actually liked torturing Gabriel. He got off on it ... he is a murderer and he is a torturer." 

    Sklar acknowledged "unspeakable acts of abuse over a period of time'' by his client, but urged the panel as a matter of law to focus only on the evening of May 22, 2013, when Gabriel endured the beating that caused his death. Aguirre was angry because Gabriel had asked his mother to leave Aguirre and then denied saying so, calling his mother a liar in front of Aguirre, the defense attorney said.

    "Isauro exploded in a rage of anger" and later "described his anger as a 20 on a scale of 10" to a detective, Sklar said. "He was completely out of control." 

    But once his client realized Gabriel was unconscious, "he immediately took steps to begin to revive him,'' the defense attorney said, telling jurors that Aguirre had run cold water over the boy while "repeatedly hollering his name" and told the boy's mother to call 911 for help.

    He said his client realized that a call to 911 would result in his arrest, and described Aguirre's subsequent statements to investigators as "genuine remorse" for what he had done rather than expressions of self-pity for his own predicament.

    The attorney alleged that Gabriel's mother was the one who hit the boy with a belt, shot him with a BB gun and was responsible for much of the abuse prior to his death.

    Los Angeles County Fire Department personnel went to the family's home in the 200 block of East Avenue Q-10 in Palmdale in response to a call that Gabriel was not breathing. He was declared brain-dead that day and taken off life support two days later.

    Aguirre and the boy's mother have been jailed without bail since being charged in May 2013 with his death. The two were subsequently indicted by a Los Angeles County grand jury.

    Two former Los Angeles County social workers -- Stefanie Rodriguez and Patricia Clement -- and supervisors Kevin Bom and Gregory Merritt were charged last year with one felony count each of child abuse and falsifying public records in connection with the case.

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