PROVO — There's a new rule when it comes to aggravated murder, and one attorney is arguing that using it against a father charged with the death of his 4-month-old baby is unconstitutional.

Victor Gardea, 23, of Provo is charged with aggravated murder for the death of his baby girl, Jasmin, in September.

Gardea told police he had been up all night helping his wife study and when Jasmin woke up early crying, the frustrated dad struck her in the abdomen and head with his closed fist, defense attorney Richard Gale wrote in a recent motion.

But when Gardea realized how severely she was injured, he called 911 and tried to administer CPR until paramedics arrived, Gale said.

Under the older murder statute, prosecutors would have to prove that Gardea intentionally or knowingly caused Jasmin's death.

Gale doesn't believe they could do that.

"Gardea's behavior shows that he did not know his actions would cause his child's death," Gale wrote. "Rather the evidence presented at the preliminary hearing shows, at best, Gardea's recklessness."

And proving recklessness would mean a lesser charge, not a capital offense punishable by the death penalty.

However, the new subsection to the murder law gives prosecutors another option.

It was adopted in response to the death of 10-year-old Shelby Andrews of Syracuse, who was repeatedly abused then locked in a tiny closet by her stepmother and father, where she suffocated to death in August 2006.

But prosecutors couldn't impose the death penalty because there was no "intent to kill Andrews," Gale wrote in his motion.

So Andrews' local representative sponsored a bill that now allows prosecutors to charge someone with capital murder even without an "intent to kill."

Now, if during a specific crime — in this case child abuse — the suspects show "reckless indifference to human life," and causes the death of someone, it can be a capital felony.

That's what Gardea is charged under, and at a preliminary hearing in January, 4th District Judge David Mortensen bound his case over on both the new and old code.

Gale is asking that the decision be thrown out. If it's not, he said they'll most likely appeal the issue.

Utah County Attorney Jeff Buhman said they just recently received the motion and will be carefully reviewing it before filing their response in the next few weeks.

Gale is concerned that the new subsection is unconstitutional because it broadens, not narrows the capital murder category, and that "reckless indifference to human life," is not specifically defined in the code or case law.

Besides, he argues that prosecutors have not proved that his client showed any type of "reckless indifference."

"After Gardea realized he had hurt his daughter, he called 911, he performed CPR, and he assisted police in attempting to save his daughter's life," Gale wrote. "Gardea did all he could do to save his child's life, even to his own detriment. Gardea went so far as to confess to his actions during his interrogation by a police officer because Gardea thought the doctors could better treat his daughter's injuries if they knew exactly what happened to her."

Gale argued that unlike Andrew's parents, who heard her pleas for help but ignored them, Gardea realized the injuries and immediately took action.

Gardea will be in court again April 14.