Father faces murder trial in death of 4-month-old

AMERICAN FORK — A father who prosecutors say fatally abused his baby has been ordered to stand trial on a charge of aggravated murder.

But defense attorneys want time to argue against the judge's decision and the constitutionality of the charge itself.

Victor Gardea, 23, was in 4th District Court Thursday to hear medical officials and police officers testify about the damage he allegedly inflicted upon his 4-month-old baby girl Jasmin.

Police say Gardea called 911 on Sept. 8 to report that his baby had stopped breathing, according to an affidavit of probable cause.

Gardea told police that after waking up from a nap he found Jasmin turning blue, the affidavit states.

She was rushed to Utah Valley Regional Medical Center, then flown to Primary Children's Medical Center where she died the next day.

The medical examiner's report details numerous skull fractures, blood on the brain, a lacerated kidney and blood in the lining of the abdomen, with the ultimate cause of death being blunt force injuries to the head, Utah County Attorney Jeff Buhman said.

Provo police detective Mark Petersen testified that during an interview with Gardea, he confessed to punching Jasmin in the head and torso, hard enough that had he been hit that hard, it would have knocked him unconscious, said Buhman.

Gardea also allegedly told officers he was tired and frustrated with Jasmin and didn't want her to wake up her older brother.

However, defense attorney Dusty Kawai said the charge of aggravated murder, a capital offense, isn't justified because Gardea never intended to cause the death of his child nor did he act with reckless disregard for human life.

Instead, Gardea should be charged with child abuse homicide, a first-degree felony, which still carries the harsh potential penalty of life in prison. Such a charge would take the death penalty off the table and wouldn't cost defense attorneys thousands of dollars to do an in-depth investigation of Gardea's life as part of their defense.

"(We want to argue) that the state didn't meet its burden of proof," Kawai said. "(Gardea) is the one who called 911, he's the one who performed CPR. He cooperated with police hoping that his cooperation would help save her. That's not acting with reckless disregard for human life."

Kawai said no matter the court's punishment, Gardea is already haunted by his actions.

"That man is a broken man," he said. "He's heartbroken. He's a wreck."

Attorneys will argue motions in April. Prosecutors have 60 days from the date Gardea enters his plea to decide if they will seek the death penalty.

E-mail: sisraelsen@desnews.com