An LA judge rejected the re-sentencing bid by Gabriel Fernandez's mother Monday. The hearing was an effort to have her murder conviction tossed out.
Pearl Sinthia Fernandez, 37, was sentenced in 2018 to life in prison without parole after pleading guilty along with her boyfriend, Isauro Aguirre, to the torture and murder of her son.
At the March 2018 sentencing for Fernandez and Aguirre, the judge called the case "without a doubt the most aggravated and egregious case of torture this court has ever witnessed."
"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," Lomeli said then, 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.
According to Penal Code 1170.95, those convicted of murder under a natural and probable consequences are allowed to file for re-sentencing. In Fernandez's petition, she declares changes were made to Penal Codes 188/189 in 2019, which alters how malice is imputed on someone, and could alter her murder conviction.
"Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart," the 2019 changes state.
Legal analyst and criminal defense attorney Lou Shapiro tells KNX her lawyers argue state law has changed and that her boyfriend was the one responsible for Gabriel's death.
Fernandez alleges that she could not now be convicted of first-degree murder or second-degree murder because of recent changes made in state law.
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.
"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."
One of Gabriel's cousins, Emily Carranza was among a group of people protesting outside court this morning:
“She’s a child killer. She killed her son. We’re against her being resentenced at any cost,” Carranza says.
Another cousin, Olivia Rubio also outside court.
“We can’t believe this is going on… this three years ago. Why do we have to continue doing this,” Rubio asks.
Both of the protestors linked the case with sentencing changes advocated by Los Angeles County District Attorney George Gascon that have led to a recall campaign against him.
Within the first week of taking office, Gascon faced intense criticisms from his own prosecutors, he got push back from LA County Sheriff Alex Villaneuva and an outcry from some crime victims who claim his policies have abandoned them.
Now, less than six months after he was sworn in, LA’s DA is facing a recall effort. The organizers behind the recall effort will have to gather nearly 580,000 signatures by the end of October to make it on the ballot, and then a simple majority of voters could remove Gascon from office.
City News Service contributed to this story.