Pearl Sinthia Fernandez, who was convicted along with her boyfriend, Isauro Aguirre, in the May 2013 killing of Gabriel Fernandez, alleges in the petition for re-sentencing that she could not now be convicted of first-degree murder or second-degree murder because of recent changes made in state law.
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A hearing on the petition for re-sentencing is set for June 1 before Los Angeles Superior Court Judge George G. Lomeli, who sentenced the now 37-year-old woman in June 2018 to life in prison without the possibility of parole. She is now serving out her sentence at the Chowchilla State Women's Prison.
Gabriel Fernandez death: Charges dismissed against social workers involved in Palmdale boy's case
Gabriel Fernandez death: Charges dismissed against social workers involved in Palmdale boy's case
The prosecutor vowed to be at the hearing and to "continue to fight for justice for Gabriel.''
Fernandez pleaded guilty in February 2018 and admitted the special circumstance allegation of murder involving the infliction of torture. She had been facing a possible death sentence if the case against her had gone to trial and if she had been convicted as charged.
The plea came about two months after jurors recommended that Aguirre be sentenced to death for the boy's killing. Aguirre, now 40, is now on death row.
"You want to say that the conduct was animalistic, but that would be wrong because even animals know how to take care of their young ... It's beyond animalistic,'' the judge said in sentencing the two, noting that he hoped the two defendants would wake up in the middle of the night thinking about what they had done to the boy.
In denying an automatic motion to reduce the jury's recommendation of a death sentence for Aguirre to life in prison without the possibility of parole, the judge cited the "repeated beating, binding, burning and starving'' of the youngster. The judge also denied the defense's motion for a new trial for Aguirre.
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"... This case is without a doubt the most aggravated and egregious case of torture this court has ever witnessed,'' Lomeli said. "The weight of this factor alone is simply enormous.''
In a brief statement shortly before she was sentenced, the boy's mother said, "I want to say I'm sorry to my family for what I did ... I wish Gabriel was alive. Every day I wish that I made better choices.''
During Aguirre's trial, prosecutors told jurors that Gabriel was routinely beaten, shot with a BB gun, forced to eat cat feces and sleep inside a small cabinet while gagged and bound.
Deputy District Attorney Jonathan 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. Aguirre hated Gabriel because he thought the boy was gay, according to the prosecutor.
Palmdale community remembers Gabriel Fernandez on what would've been his 16th birthday
Palmdale community remembers Gabriel Fernandez on what would've been his 16th birthday
The boy was 7 when the abuse began and was killed three months after he turned 8.
Los Angeles County Fire Department personnel went to the family's home in the 200 block of East Avenue Q-10 in Palmdale on May 22, 2013, 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.
One of Aguirre's attorneys, Michael Sklar, contended that Fernandez 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.
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"I think they both pointed the fingers at each other, which sometimes happens in co-defendant cases,'' Hatami responded after Fernandez's plea. "The evidence showed and our office believed that they were both equally culpable in the case, and I think the evidence showed that.''
The judge agreed, saying that the evidence indicated that Aguirre was a "major participant.''
"Based upon the overall evidence presented to the jury, defendant Aguirre was by no means a passive participant in the crimes,'' the judge said then, adding that he was convinced that Aguirre's participation was "major, personal and active.''
The boy's death and the arrests of Fernandez and Aguirre led to an outcry over the handling of the case by Los Angeles County social workers, who had multiple contacts with the family.
A subsequent investigation led to the filing of criminal charges against two former social workers and their two supervisors, but that case was subsequently dismissed after a state appeals court panel found that the four "never had the requisite duty to control the abusers and did not have care or custody of Gabriel'' for purposes of the child abuse charge leveled against them and that they were "not officers'' within the meaning of the Government Code section involving falsification of public records.
City News Service contributed to this report.