Gabriel Fernandez

Gabriel Fernandez

LOS ANGELES — Saying “state law is not on our side,” Los Angeles County District Attorney Jackie Lacey said her office will not ask the California Supreme Court to review an appeals court ruling calling for the dismissal of charges against four social workers who were accused of failing to protect an eight-year-old Antelope Valley boy who was killed in May 2013.

The announcement comes about one-and-a-half months after a three-justice panel from California’s 2nd District Court of Appeal ruled that there was no probable cause to hold Stefanie Rodriguez and Patricia Clement, and their supervisors, Kevin Bom and Gregory Merritt, on the charges stemming from Gabriel Fernandez’s death.

The appellate court justices ruled Jan. 6 that the trial court should have granted the defense’s motion to dismiss the case against the four, who were charged in March 2016 with one felony count each of child abuse and falsifying public records.

“My office vigorously pursued those who directly caused Gabriel’s death and those who failed to intervene to protect him,” the county’s top prosecutor said in a written statement provided by the District Attorney’s Office.

“While we prevailed against those who inflicted the injuries, the appellate court rejected our theory of criminal liability against the social workers, who my office believed had a duty to protect Gabriel,” Lacey said. “Unfortunately, in the case against the social workers, state law is not on our side.”

The appellate court panel refused Jan. 23 to reconsider its ruling.

The case was effectively put on hold during the appellate court proceedings. Rodriguez, Clement, Bom and Merritt are due back in a downtown Los Angeles courtroom on March 23, and the prosecution will not object to the case being dismissed then, according to the District Attorney’s Office.

The district attorney said that she will “explore proposing legislation to impose a legally recognized duty of care on those entrusted with protecting our children,” and that her office will ask the court to de-publish the ruling, which would mean that it couldn’t be cited as precedent in similar cases in the future.

Isauro Aguirre — the boyfriend of the child’s mother — was sentenced to death in June 2018 after being convicted of first-degree murder. Jurors found true the special circumstance allegation of murder involving the infliction of torture.

The boy’s mother, Pearl Sinthia Fernandez, was sentenced to life in prison without parole after pleading to first-degree murder and admitting the torture allegation.

An autopsy showed that the boy had a fractured skull, several broken ribs and burns over much of his body. His teacher testified that she called Rodriguez multiple times to report that Gabriel told her that his mother punched him and shot him in the face with a BB gun.

In its ruling last month, the appellate court panel found that Rodriguez, Clement, Bom and Merritt “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.

Associate Justice Victoria Gerrard Chaney concurred that the four could not be charged with child abuse, but wrote a dissenting opinion arguing that they could be prosecuted as public officers under the relevant government code section.

“Allowing a social worker to evade liability for falsifying a public document would incentivize social workers to put their own interests in avoiding liability for their misdeeds above the purpose of the state’s child welfare statutory scheme, which is child safety,” Chaney wrote.

“The petitioners’ actions here prevented the system from working in whatever way it might have had they done their jobs honestly, and offers no incentive for either DCFS or individual social workers to work to reform and repair the parts of the system that may fail the children it is intended to protect,” she added. “We have, in effect, encouraged DCFS and its social workers to cover their tracks if they stumble on the cracks in the system.”

Defense attorneys — who argued that the abuse and torture escalated months after a file on the boy had been closed and that there was insufficient evidence to take him away from his mother — took their case to the appellate court after Los Angeles Superior Court Judge George G. Lomeli called the young boy’s death “foreseeable” and denied a motion to dismiss the charges against the four.

A Netflix original documentary series — “The Trials of Gabriel Fernandez” — about the boy’s death and the two criminal cases that were subsequently filed is set for release next Wednesday.

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