Penalty phase underway for killer of 8-year-old boy

LOS ANGELES – A former security guard convicted of the torture- murder of his girlfriend’s 8-year-old son deserves “nothing less than death,” a prosecutor told jurors Monday, while a defense attorney said “there are reasons to spare his life.”

The seven-woman, five-man panel that found Isauro Aguirre guilty on Nov. 15 of first-degree murder with a special circumstance allegation of murder involving the infliction of torture is now tasked with recommending whether the Palmdale man should be sentenced to death or life in prison without the possibility of parole for the May 2013 death of Gabriel Fernandez, who was routinely beaten, shot with a BB gun, forced to eat cat feces and sleep inside a small cabinet while gagged and bound.

Prosecutors are also seeking the death penalty for the boy’s mother, Pearl Sinthia Fernandez, 34, who is awaiting trial on the same charges and has also been jailed without bail since being arrested in May 2013.

Deputy District Attorney Scott Yang told the jury that the penalty phase of Aguirre’s trial, which is expected to last seven or eight days, will be “about the severity of the crime, the severity of the injuries to a helpless child, the impact of Gabriel Fernandez’ death on those who knew him and those who loved him. And it’s going to be about the defendant’s lack of remorse immediately after he killed Gabriel.”

“Gabriel was taken from the only parents he knew,” the prosecutor said of the boy’s grandparents, who cared for him before his mother and Aguirre took him away. “And for eight months he was abused, he was tortured and he was beaten, like a prisoner of war, at the hands of the defendant.”

Yang detailed some of the tortures inflicted on the boy, whose “last vision (was of) his mother and the defendant standing over him kicking and punching him to death,” and said jurors would see evidence of the full extent of some of his injuries during the penalty phase.

Gabriel’s biological father, who was assured that his son would be cared for by his maternal grandparents, is expected to testify on Tuesday.

“When you consider all of the evidence … and the callousness of this defendant during an eight-month period,” it will “outweigh all of the mitigation,” Yang said, telling the jury that Aguirre, 37, should receive a sentence of “nothing less than death.”

Defense attorney Michael Sklar told the jurors he respected their verdict — although he had argued earlier that the evidence supported only a second-degree murder conviction — and asked the panel to consider Aguirre’s entire life in recommending a sentence.

“The law never requires a death sentence … even for the worst crimes imaginable,” he said.

“We’ll be asking you to punish Isauro Aguirre severely,” Sklar said, painting a picture of his client “waking up every morning in a prison cell” racked by the thoughts of what he had done to Gabriel.

He said the prosecution “will present heart-wrenching testimony,” but told jurors it was their responsibility “not to allow the emotion you feel to overcome your reason. There are reasons to spare his life.”

Aguirre, who was held back in the ninth and 11th grades and never graduated from high school, “is simple, he’s slow and he’s easily led, but he did the best he could until he met Pearl,” Sklar said.

The defense attorney said residents at the assisted-living home where Aguirre worked for a time described him as “gentle, kind and patient” and were in “utter shock” when they heard about his crime, adding that Aguirre was the “peacemaker” in his family and “an obedient son.”

“This is who he is before he met Pearl and this is who he is today,” Sklar said, telling jurors that Aguirre had no history of violence or prior felony convictions and has been a model inmate while his co-defendant has been charged with assaulting a deputy in jail and was also involved in a fight with another female inmate.

“Must Isauro Aguirre be put to death or is he a person who has humanity?” Sklar asked. “Isauro Aguirre is entitled to the individual moral decision of each one of you.”

The first witness to be called was a cousin of the victim, who testified that he was a “very lovable and affectionate” boy who “was well-behaved, he always listened, he never spoke back to any adults.”

Emily Carranza has a son about Gabriel’s age and broke into tears more than once on the stand as she said “he doesn’t deserve to be forgotten … he was a little boy who had a lot of love, a lot of compassion for his family.”

A forensic dentist who consulted on the case for the Los Angeles County coroner, a medical social worker at Children’s Hospital Los Angeles and a deputy who rode in the back of an ambulance with Gabriel on the night he was fatally beaten all testified that his were the worst child abuse injuries they’d seen.

That testimony came over the objections of defense attorneys, who said the responses violated their client’s rights to due process and a reliable penalty decision, but were overruled by Superior Court Judge George G. Lomeli.

Some jurors turned away from close-ups showing Gabriel’s lip torn from the bones of his face, which the dentist testified was consistent with the tot being hit in the face with a baseball bat.

Medical social worker Sandra Himmelrich, who saw Gabriel when he arrived at the hospital, testified about a BB shot found in the boy’s penis, which was also burned and bruised.

“It was a very jarring case … (even though) I’ve had some other (child) torture cases,” Himmelrich said. “It made me want to fight even harder for the kids.”

Deputy Matthew Bistline called the May 22, 2013, ambulance ride horrible.

“I remember constantly thinking in my head (about) which injury to treat next,” Bistline said, explaining that as he treated one problem, another would be identified. “(We) just kept bouncing back and forth from injury to injury … his pulse would come and go. It was very chaotic. To this day, I have never, ever witnessed, seen or heard of anything, in my opinion, as violent as that was.”

At a hearing outside the jury’s presence last week, Lomeli denied defense motions for a mistrial and for the recusal of Deputy District Attorney Jonathan Hatami. Defense attorney John Alan argued that “statements that the prosecutor made to the media (after the verdict) 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 the case.

Lomeli said jurors had been instructed to avoid any news coverage of the trial — an admonishment he repeated Monday morning — while warning the attorneys that it was “not wise or prudent to make any comments” that could jeopardize the case.

Sklar acknowledged during the guilt phase of the trial that Aguirre killed the boy, but told jurors that 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.

Hatami countered that Aguirre was an “evil” man who “liked torturing” the boy and did so systematically in the months leading up to the child’s death because he thought the victim was gay.

“This was intentional murder by torture,” he said, telling jurors that in the months leading up to the boy’s death, he 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 said 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.

Sklar said 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 the defendant, who “exploded in a rage of anger” and “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 told the boy’s mother to call 911 for help though he knew it would result in his arrest.

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 of cardiac arrest. Gabriel was taken off life support two days later.

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.

Previous related stories:

Judge denies motion for mistrial in torture-murder of 8-year-old boy

Palmdale man convicted of torture-murder of girlfriend’s 8-year-old son

Jury deliberations underway in trial of man charged in 8-year-old’s death

Closing arguments underway in trial of man charged in 8-year-old’s death

Defense seeks to convince jury of defendant’s  remorse in 8-year-old boy’s death