A Salt Lake man who admitted kicking an unconscious father and his son while they were lying on the ground was sent to prison Tuesday.

Richard Gabaldon, 20, was ordered to serve two consecutive zero-to-5-year sentences for his involvement in the fight on June 9 that resulted in the death of Don Newingham, 39, and his 18-year-old son, Shane Newingham.Third District Judge Richard Moffat said he realizes Gabaldon did not

stab and kill the two Salt Lake men. "But he played a key factor in instigating the melee that night."

Salt Lake County Deputy Attorney Kent Morgan argued that Gabaldon does not deserve compassion for participating in a bloody fight and then stomping on the heads of two dying victims lying in the street.

The Newinghams had come to Gabaldon's home at 467 N. Morton Drive that evening to join a party. But Gabaldon and then 17-year-old Fred Alvarez refused to let Don Newingham into the house. Alvarez pulled out a knife and ordered him to leave. Newingham was walking back to his car when Alvarez and Gabaldon chased after him and the fight began.

"There is something egregious about attacking a person walking away from a fight," Morgan said. "That is when law-abiding citizens back off and say, `It's over.' "

Defense attorney Andrew Valdez said his client is unfairly being held just as responsible for the killings as Alvarez, who was convicted of killing Don Newingham and is now serving a life sentence.

"The totality of his conduct was that he kicked some people when they were down," he said. "Now he's being boot-strapped into the same situation as somebody who actually killed two people."

Gabaldon was originally charged with two counts of capital murder. The charges were reduced to second-degree murder and reduced again to two counts of aggravated assault in exchange for his testimony against his friend Alvarez. In doing so, Valdez said Gabaldon "severed himself from his community."

Committing him to prison could be a death sentence, Valdez told the judge.

"There's already been word put out that he's a dead man," he said. "There's no need to destroy another life and I think prison would do that."

Gabaldon apologized to the victims' family and to his family. "I know what I did was wrong and I wish I could change everything, but I can't," he said.

Moffat also sentenced Gabaldon to two additional three-year terms because of the state's new gang enhancement statute. The judge suspended the sentence increase, however, largely because of Gabaldon's clean criminal record.

The statute - aimed at enhancing sentences for convicted gang members - was passed by the Legislature last year. Additional time can be added to the sentence if a judge determines the crime took place "in concert with two or more persons."

Valdez argued that the statute is unconstitutional and vague. The law was enacted to deal with hard-core criminal street gangs but as written could apply to any group of people, he said. The recent police beating in Los Angeles, had it occurred in Utah, would qualify for the enhancement even though that was not the Legislature's intent.

Even though the legislative intent was to punish gang members, Moffat said it is not necessary to determine if a defendant is a member of any gang, only that he acted in concert with two or more others.