“I think that she feels that somehow maybe, you know, the special circumstance will be dismissed or maybe she’ll have a chance that the D.A. will agree with the petition,” Deputy District Attorney Jonathan Hatami said.
Hatami said that District Attorney George Gascón’s directive for these types of petitions is for prosecutors to dismiss special circumstances.
“I’m just not going to do that,” he said. “I don’t believe it’s ethical, and I don’t believe it’s legal, and I’m not gonna let down Gabriel and Gabriel’s family.”
But Fernandez could have filed the petition even before Gascón took office, since the paperwork argues that her conviction could be altered due to a 2019 change to the state’s felony murder law regarding malice.
“She’s not gonna qualify for a number of different reasons,” legal expert Alexandra Kazarian said.
Kazarian said Fernandez acted with wilfull disregard for Gabriel’s life and was an active participant in his murder. However, if she does not file the petition now, Kazarian said she would waive her right to ever do so.
“So, her lawyers have to do it, but there’s less than 0% chance she will ever qualify for this resentencing hearing,” Kazarian said.
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At the time, Hatami called Aguirre an “evil” man who “liked torturing” the boy and did so systematically in the months leading up to Gabriel’s May 2013 death.
Carranza said the family was grateful when Fernandez pleaded guilty, even if it was only to spare herself from the death penalty. But now, with the latest filing, she said they were outraged that Fernandez could be dragging them back into additional traumatic court proceedings.
“If you’re a baby killer, and you did this with intent, and you knew what you were doing for over eight months, then you don’t get a second chance,” she said.
Gabriel’s death, and the subsequent arrests of Fernandez and Aguirre, led to an outcry over the handling of the case by social workers with the Los Angeles County Department of Children and Family Services, who had multiple contacts with the family.
A hearing on the petition for re-sentencing is set for June 1 before Los Angeles Superior Court Judge George G. Lomeli, the same judge who initially sentenced the now 37-year-old woman. As for Hatami, he said he would be at the hearing to “continue to fight for justice for Gabriel.”