A 30-year-old Alamogordo man was sentenced Thursday in 12th Judicial District Court to 18 years in prison for the 2009 death of a 7-month-old infant.
Bobby C. Hernandez, in a plea agreement with the state on Jan. 3, 2012, pleaded no contest to first-degree felony child abuse negligently resulting in death.
Hernandez will be placed on two years of parole following the completion of his prison sentence. He will also have to pay a $100 DNA sample fee and pay $5 into the domestic violence fund.
Hernandez has been jailed at the Otero County Detention Center since being charged on June 16, 2009, for the death of the infant.
He will receive almost three years of credit for time served while being jailed at OCDC since his arrest.
Alamogordo Department of Public Safety officers and American Medical Response paramedics responded to a 7-month-old infant fall victim around 8:26 p.m. on June 8, 2009.
At the time, ADPS Detective Sgt. Israel Trujillo said an investigation showed the child had been dropped, causing an injury to his head.
The child had been transported to Gerald Champion Regional Medical Center, then airlifted to University Medical Center in El Paso, where he was pronounced dead by medical staff.
At the time, Trujillo said an ADPS detective traveled to the Office of the Medical Investigator in Albuquerque to observe the autopsy.
"During the course of the autopsy, we learned there was severe blunt force trauma to the back of the head of the child," he said at the time. During his sentencing hearing, Hernandez apologized to the court and the victim's family.
"I am really sorry," Hernandez said. "I loved Alex with all my heart. I never did anything (to him) out of anger. I didn't mind babysitting Alex. It was an accident."
During Hernandez's sentencing hearing Thursday, the state represented by Deputy District Attorney Peter S. Burns, argued that Hernandez had intentionally slammed the child onto the floor because he was upset over the recent break up with mother of the child, and was upset that the child had a dirty diaper.
Hernandez's defense attorney James Walker argued that it was an accident because Hernandez actually tripped over an inflatable bouncer, got his leg or foot caught up in it, fell forward while holding the child with his hand on the child's bottom area and forgot he was not holding the child's head.
Burns argued for 12th Judicial District Judge Jerry H. Ritter Jr. to rule that Hernandez had committed a serious violent offense by slamming the child on the floor and add 6 1/2 additional years to Hernandez's 18-year mandatory sentence.
Ritter, from the bench, said he believes the state was trying to base Hernandez's case on an intentional act out of anger after the state entered into a plea agreement of child abuse negligently resulting in death, then arguing it couldn't have been negligent -- but intentional -- because the child was badly hurt.
"I heard many times the word 'slamming' in this case," he said. "What does slamming mean in this case? The state has used the word slamming in context to reinforce the idea that it was intentional. I am not sure Hernandez used the word to describe it."
Ritter said he believes Hernandez used the term "slamming" to describe the amount of impact and ruled Hernandez's offense and actions were not a serious violent offense.
Burns said he believes the court gave a reasoned, well thought out and balanced opinion in sentencing Hernandez.
"The state had certainly moved the court to consider Hernandez's offense as a serious violent offense because we're dealing with the death of a human being here," he said. "We felt the circumstances under which this occurred lent themselves to a determination of this nature. However, the court did not agree with the state's rationale and determined we had not proven that in accordance with the existing state of New Mexico case law."
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