LOS ANGELES (FOX 11 / CNS) - A jury recommended Wednesday that a Palmdale man be sentenced to death for the torture-murder of his girlfriend's 8-year-old son, who was repeatedly shot with a BB gun, beaten and forced to sleep in a small cabinet with his hands and feet bound and his mouth gagged.
The seven-woman, five-man jury deliberated for about seven hours over three days before recommending that Isauro Aguirre, 37, be put to death for the May 2013 killing of Gabriel Fernandez. The boy's mother, Pearl Sinthia Fernandez, 34, is awaiting trial and also faces a possible death sentence.
Phil Shuman's thoughts from the courtroom:
Isauro Aguirre is going to die by lethal injection, not any time soon...but eventually.
This assumes the verdict and sentence delivered in the brutal torture-death of Gabriel Fernandez is upheld on mandatory appeals and the state at one point resumes the executions that were halted back in 2006.
The 37-year old one time security guard, the boyfriend of Gabriel's mother was convicted of first degree murder with the special circumstance of torture last month, and today, after almost 3 days of deliberations, the 7 woman 5 man jury came back with a sentence of death.
Through it all, Aguirre sat stone-still, never moving a muscle. The mother goes on trial, if it's not delayed, next year, as well as two social workers and two supervisors from the County's Department of Children and Family Services.
There are no ''winners'' here, it's all tragic, but the system is working....slowly. Gabriel's siblings have been or are in the process of being adopted by an uncle and are said to be doing well under the circumstances.
Sentencing for Aguirre, a former security guard, was set for March 8.
The jury's recommendation came shortly after the panel heard a read-back of testimony by William Adams, a consultant who spent more than 26 years working for the California Department of Corrections and Rehabilitation. He was defense's final witness.
In his testimony last Thursday, Adams told the jury he believed Aguirre was "more likely to be prey than predator" among the state prison population if he was sentenced to life without parole. But he acknowledged under questioning by the prosecutor that it was his personal opinion the
defendant had committed an "evil" act.
Los Angeles Superior Court Judge George G. Lomeli rejected the jury's request for a transcript of the attorneys' closing arguments or for a slide shown by Deputy District Attorney Jonathan Hatami during his closing argument, noting that "nothing that the attorneys say is evidence."
The judge offered jurors the chance to hear another 30-minute summation of their case from attorneys on both sides, but the jury passed on the offer.
In a note submitted late Monday, the jury asked what the outcome of the case would be if the panel is unable to reach a unanimous verdict. At a brief hearing Tuesday, the judge told the panel that the question was "a little bit premature," noting that jurors had not spent very much time discussing the case.
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.
In addition to convicting Aguirre of murder, jurors found true the special circumstance allegation of murder involving the infliction of torture, making him eligible for capital punishment.
In his closing argument Monday, Hatami told jurors the death penalty is the "only appropriate and just punishment," while one of Aguirre's attorneys, John Alan, pleaded for mercy for his client.
The prosecutor began his closing argument in the penalty phase by showing the jury autopsy photos of Gabriel's "head-to-toe" injuries, which a doctor, a nurse, a social worker, a sheriff's detective and others working with child abuse victims had testified were the worst they had ever seen.
"There is nothing worse in our society than a grown man murdering and torturing an innocent little boy," Hatami told the panel. Then he set a large photo of the boy, with a small smile on his face, on an easel in front of the jury box.
The prosecutor reminded jurors of testimony that the boy was forced to sleep in a small wooden cabinet with his hands tied behind his back and his ankles handcuffed.
"Stuffed in that box ... cold, afraid, lonely, hungry, probably hard to breathe," the prosecutor said. The boy "defecated and urinated in that box" and "even was force-fed his own vomit. The defendant broke Gabriel's spirit."
Aguirre "beat Gabriel to death with his fists and his hands ... in front of Gabriel's own brother and sister. What type of man would do that?"
Hatami asked. "Not a man with any goodness in him." The prosecutor reminded jurors that Gabriel's "emaciated little body had nine metal BBs in it ... a lacerated liver, a fractured skull, whip marks on his back ... unimaginable pain and suffering at the hands of the defendant.
"What type of man would punch a child 10 times in the face? Not a man with any goodness in him," Hatami said. "Death was likely a merciful end to Gabriel's pain and suffering," the prosecutor said before asking jurors to hold Aguirre accountable.
Aguirre's attorney told jurors it is up to them to determine if Aguirre will spend his life "behind concrete walls and steel bars in prison until he departs this Earth in God's time" or dies "prematurely at the hands of man."
His client had never been convicted of any another crime and had no prior history of violence, Alan said. "The death penalty is not required for even the most heinous crime," the defense attorney said, reminding jurors that they were each being asked to make "a personal, moral decision."
The defense attorney recalled testimony from Aguirre's co-workers about his "compassion, empathy, gentleness, kindness, respectfulness and patience" in dealing with elderly patients at an assisted-living facility in Woodland Hills.
"I don't think we'll ever truly understand how that person ... gentle, kind, patient, respectful ... came to commit this horrific crime," Alan said. "I believe that the answer, at least in part, lies where Isauro's life intersected with Pearl's."
Pearl Fernandez was "violent, abusive and neglected her children even before she met Isauro. Even her own family considered her a danger to her children," the defense attorney said.
Aguirre and Fernandez have been jailed without bail since being charged in May 2013 with the boy's 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 are awaiting trial on one felony count each of child abuse and falsifying public records involving the boy.