Stephen D Aarons, Attorney at Law | Aarons Law PC | New Mexico Criminal Defense Attorney

Category: Crimes Against Children

  • Judge eases pretrial conditions for Fabian Gonzales

    ALBUQUERQUE, N.M. — A 2nd Judicial District Court judge denied a motion to put a man tied to a grisly child killing back in jail.

    Instead, Judge Charles Brown eased pretrial release conditions on Fabian Gonzales to allow him to work outside Bernalillo County and to be unsupervised around children. Gonzales will now be allowed to live with his girlfriend and her children.

    Gonzales, 35, is charged with reckless abuse of a child resulting in death, tampering with evidence and conspiracy to commit tampering with evidence in the death of 10-year-old Victoria Martens in August 2016.

    Gonzales was previously required to live at a residence determined by the court’s Pretrial Services Division and was not supposed to have contact with minors unless he was supervised by another adult, among other restrictions. He was released from jail in November.

    Earlier this month, staff with Healthcare for the Homeless told the court’s Judicial Supervision and Diversion Program that Gonzales was at the facility with his girlfriend and her children and was around the children unsupervised for several minutes. Prosecutors then asked Brown to revoke Gonzales’ conditions of release.

    Brown denied the request at a hearing Tuesday morning and removed the condition that Gonzales must be supervised around children. Brown said he wasn’t sure why he ordered Gonzales to have no unsupervised contact with children in the first place. Gonzales was initially charged with killing Martens, but now investigators say the killing was committed by an unknown man.

    “Other than the crime for which he’s charged, there is no evidence that he’s ever been a danger to any child anywhere at anytime,” Brown said during the hearing.

    Bernalillo County District Attorney spokesman Adolfo Mendez said the office can’t appeal Brown’s ruling, but it is looking at other avenues of review.

    “We are disappointed that the district court’s response to Mr. Gonzales’s violation of conditions of release is increased leniency,” Mendez said in an email.

    Stephen Aarons, Gonzales’ attorney, said in an email that the “ruling today reflects how well Mr. Gonzales has done with pretrial supervision: full time employment, a new lease, no alcohol, no drugs, no violations of any kind.”

    Prosecutor Greer Rose said that while Gonzales’ girlfriend was filing for a housing voucher at Healthcare for the Homeless, Gonzales took her son to a nearby gas station to use the bathroom. Brown found that Gonzales did not violate his conditions by doing so.

    “The ruling today reflects how well Mr. Gonzales has done with pretrial supervision: full time employment, a new lease, no alcohol, no drugs, no violations of any kind,” Aarons said in an email. “The district attorney has spent 1,400 days and millions of taxpayer dollars prosecuting the wrong person. When will it end?”

    Brown also granted a defense motion to allow Gonzales to work outside Bernalillo County.

    Brown didn’t grant a defense request to remove Gonzales’ GPS monitor and left it to the discretion of pretrial services.

  • NM Court of Appeals affirms Fabian Gonzales’ release

    ALBUQUERQUE, N.M. — Finding it was in accordance with the law and supported by substantial evidence, the state Court of Appeals has affirmed a local judge’s decision to release the man facing charges surrounding the death of 10-year-old Victoria Martens.

    In opting to free Fabian Gonzales, the Court of Appeals wrote, Judge Charles Brown properly considered the defendant’s lack of felony convictions, the dismissal of some of his most serious charges and the strength of the remaining allegations against him.

    Shortly after the child was found dead in her family’s apartment, authorities said that Gonzales had drugged, raped and killed her before dismembering her body. But eventually evidence surfaced showing that Gonzales was not at the apartment at the time of Victoria’s death. The state’s latest theory of the case charges Gonzales with tampering with evidence and child abuse resulting in death. He is accused of helping his cousin dismember the girl’s body after she was reportedly killed by an unidentified man who was looking for Gonzales.

    Gonzales’ attorney did not immediately respond to a request for comment.

    A spokesman for the District Attorney’s Office, which filed the unsuccessful appeal, said the office is weighing its options “in order to best protect the community from Gonzales.”

    Gonzales’ attorney Stephen Aarons said in a statement that his client “has been waiting 1,189 days for his day in court.” “The public has a right to know what really happened,” Aarons wrote. “It is high time for the district attorney to stop delaying this trial.”

    Brown’s decision was the subject of social media rage and a protest in front of District Court in Downtown Albuquerque. Gonzales was finally released from jail last week after a more than three-year stay.

    The Court of Appeals order comes less than a week after the state asked the court to review Brown’s decision. In their appeal, prosecutors explained why they believed Gonzales “poses a clear threat to the safety of the community” and should have been detained as he awaits trial in the case.

    They also say Brown found Gonzales was not a threat because his record consists only of misdemeanor convictions and because his most egregious charges had been dismissed. They argued that the decision effectively created a rule requiring prior felony convictions or murder or rape charges in order to classify a defendant as a danger.

    Read the unanimous decision of the Court of Appeals

    Albuquerque Journal ©2019 Reprinted with permission. Contact the writer.

  • Order Affirming Release of Fabian Gonzales

    1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    2 STATE OF NEW MEXICO,
    3 Plaintiff-Appellant,
    4 v.                                                       No. A-1-CA-38570
    5                                                           D-202-CR-2016-02961
    7 FABIAN ELIAS GONZALES,
    8 Defendant-Appellee.
    9
    10 ORDER AFFIRMING DISTRICT COURT’S DENIAL OF STATE’S
    11 MOTION FOR PRETRIAL DETENTION
    12 This matter comes before the Court on the State’s expedited appeal, filed under
    13 Rule 12-204 NMRA, from the district court’s order denying the State’s motion for
    14 pretrial detention. The Court has reviewed the State’s motion, accompanying exhibits,
    15 transcript of the November 6, 2019 hearing, and the parties’ district court filings
    16 related to this matter. Having considered the same, as well as the applicable law, this
    17 Court concludes that the district court’s decision to deny the State’s motion for
    18 pretrial detention is supported by substantial evidence, is not arbitrary or capricious,
    19 and is otherwise in accordance with the law. See Rule 12-204(D)(2)(b) (providing the
    20 standard of review applied by appellate courts in reviewing pretrial detention
    21 decisions); State v. Groves, 2018-NMSC-006, ¶¶ 24-25, 410 P.3d 193. We note, in

    1 concluding that the district court did not err in determining that the State failed to
    2 meet its burden under Rule 5-409(F)(4) NMRA, the district court properly considered
    3 Defendant’s lack of felony convictions; the fact that Defendant’s past misdemeanor
    4 charges occurred over a seventeen-year period; the strength of the State’s remaining
    5 case against Defendant; and the fact that the State has dismissed all intentional violent
    6 offenses with which Defendant had been originally charged, including murder,
    7 criminal sexual penetration, and intentional child abuse.
    8 Furthermore, to the extent the State seeks review of the district court’s decision
    9 not to impose a monetary bond, the district court’s decision in this regard is not
    10 properly before this Court on appeal. See Rule 5-405(A)(3)(b) NMRA (providing that
    11 the “state may appeal if the district court has denied the prosecutor’s motion for
    12 pretrial detention,” and recognizing a defendant’s limited ability to appeal a district
    13 court order requiring a secured bond when the defendant continues to be detained as
    14 a result of an inability to pay, but not identifying any right by the state to appeal a
    15 district court’s refusal to set a monetary bond).

    1 It is hereby ORDERED that the district court’s order denying the State’s
    2 motion for pretrial detention is AFFIRMED.
    ____________________________________
    s/ J. MILES HANISEE, Chief Judge
    s/ M. MONICA ZAMORA, Judge
    s/ BRIANA H. ZAMORA, Judge

    Filed 11/25/2019 4:27 PM

  • Woman acquitted in infant’s death won’t receive more time

    Babysitter was sentenced for other crimes but served two years while awaiting trial

    Rachel Smith

    A woman acquitted last month of causing the death of an infant she was babysitting at a Santa Fe motel will serve no additional time for possessing drug paraphernalia and obstructing a police investigation by initially pretending to be the child’s mother.

    A judge on Tuesday sentenced Rachel Smith, 27, to just under two years for those crimes. But counting time spent in jail and on electronic monitoring, Smith already had undergone more than two years of incarceration while awaiting trial.

    Authorities charged Smith in the 2017 death of 3-month-old Jonathan Valenzuela after medics arrived at the Cerrillos Road motel in response to her frantic 911 call reporting the child was not breathing. Responders found the baby dead.

    Smith said at trial she originally claimed to be the child’s mother in order to protect the baby’s teenage mother from getting in trouble.

    The boy had no visible injuries, and police initially speculated that Smith — who admitted she used heroin in the bathroom while the boy and his 2-year-old sister slept — may have smothered the child by accidentally rolling over on him. But when an autopsy found the child died of strangulation and blunt force trauma, Smith was charged with child abuse resulting in death.

    About a month before the case was set for trial in July, the state got more time to investigate evidence that suggested the child’s mother, Angel Arellano, may have inflicted the child’s fatal injuries. Though prosecutors never charged Arellano and proceeded with their prosecution of Smith, defense attorney Stephen Aarons raised the issue at trial.

    Medical examiner Dr. Heather Jarrell testified that in her opinion the infant’s injuries most likely were inflicted during the time he was under Smith’s care, but she acknowledged under cross-examination it was possible the injuries were inflicted much earlier, while the baby was with his mother.

    A jury found Smith not guilty of child abuse resulting in death, but convicted her of obstructing an investigation and possession of drug paraphernalia. The maximum penalty for each of those misdemeanors is 364 days in jail.

    The child’s mother did not attend the sentencing. Smith declined to comment after the hearing, saying only, “Not right now. I’ve been through enough.”

    • By Phaedra Haywood phaywood@sfnewmexican.com
    • Reprinted with permission

  • Rachel Smith will serve no additional jail time in child death case

    SANTA FE — A woman who was acquitted of killing an infant at a Santa Fe motel in March 2017 got credit for time served while awaiting trial for convictions on lesser charges and will no longer be incarcerated.

    In a trial that began in June, Rachel Smith, 27, was found not guilty of child abuse resulting in death after she was charged killing 3-month-old Jonathan Valenzuela at the Thunderbird Inn on Cerrillos Road. Smith was babysitting Jonathan and his older sister for their then 17-year-old mother.

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    Rachel Smith talks with her attorney Stephen Aarons after her sentencing hearing in Santa Fe on Tuesday. (Eddie Moore/Albuquerque Journal)

    But Smith was found guilty of one count of obstructing an investigation of child abuse and neglect for initially lying to police about being the children’s mother as well as one count of possession of drug paraphernalia.

    Smith faced two years in jail on those convictions. But since she was arrested in March 2017 and was later put on house arrest, which counts as incarceration, Smith faces no additional jail time.

    “You have no further sentence to serve in this case,” Santa Fe District Court Judge Mary Marlowe Sommer told Smith at a sentencing hearing Tuesday.

    According to Smith’s testimony at trial, Jonathan stopped breathing when she was feeding him with a bottle around 5 a.m. March 11, 2017. Smith went outside her motel room and started screaming for help, prompting bystanders to come to her aid. Police arrived and were unable to revive Jonathan.

    Although Smith, who said she was addicted to heroin at the time, had admitted to using heroin the night before, she has always denied hurting the infant. Smith has since sought treatment for her addiction, and Marlowe Sommer urged Smith to continue her treatment on Tuesday.

    Investigators initially believed Smith may have suffocated Jonathan by accidentally rolling on top of him as she slept, but an autopsy later revealed that he died of blunt force trauma to the head.

    One of Smith’s lawyers, Stephen Aarons, argued that Jonathan’s mother, Angel Arellano, caused the fatal injuries before leaving the children with Smith, which Arellano denied.

  • Smith found not guilty in baby’s death

     

    Smith, 28, was found guilty on two counts of obstructing the investigation into the child’s death and drug possession. Because she has already served more than two years in custody on electronic monitoring, her lawyer asked she be released for time served.

    Chief Judge Marlowe Summer agreed. Smith’s remaining sentencing is still pending.

    Trembling slightly, both Smith and a defense attorney, Hugh Dangler, appeared to cry after the verdict was read. Several members of Smith’s family brought their hands together in prayer to thank Dangler as the courtroom emptied.

    “I am extremely grateful for the jury’s work … and extremely grateful for their decisions,” Dangler said.

    The baby’s mother, Angel Arellano, 20, exited the courtroom, sobbing in a summer dress.

    On March 11, 2017, Smith had been babysitting the infant, Jonathan Valenzuela, and his 2-year-old sister at her room at the Thunderbird Inn, when she awoke to find the baby had stopped breathing.

    Smith, from Glorieta, admitted to police she had injected heroin the night before the baby’s death, and was indicted on charges of reckless disregard, which could incur an 18-year prison sentence. Police initially believed Smith, who had been watching the children for 33 or 34 hours, may have rolled over the baby in her sleep.

    An autopsy report later showed there had been bleeding in Valenzuela’s brain, likely caused by blunt force trauma, and broken bones in the infant’s neck, consistent with strangulation.

    Prosecutors for the state asked during the trial if she had harmed the baby in a stage of drug withdrawal, as the heroin left her system.

    The trial was postponed in March when new evidence raised questions over whether the baby’s mother, Arellano, might have shaken or injured the baby before leaving him in Smith’s care. Arellano has said she did not harm her son.

    Dr. Heather Jarrell, a neuropathologist with the New Mexico Office of the Medical Investigator, and a witness for state prosecutors, said earlier this week the injuries could have been caused within 24 or 48 hours of the baby’s death.

    The jury, composed of six men and six women, deliberated for two hours after closing arguments concluded Tuesday and returned Wednesday morning just after 11 a.m.

    “This is a mysterious death,” Dangler said. “And will probably remain so.”

     

    By Rebecca Moss, Santa Fe New Mexican (C) 2019 Reprinted with Permission

    Sitter’s lawyer requests immunity for mother in testimony about dead boy

    Rachel Smith has spent the better part of the past two years in the county jail awaiting trial on a charge that she caused the death of a 3-month-old infant left in her care in a Cerrillos Road motel room in 2017.

    But Smith’s defense attorney and prosecutors recently told a state district judge that new evidence raises the possibility that the child’s mother, Angel Arellano, might have inflicted the injuries that led to the death of Jonathan Valenzuela.

    Arellano had dropped off the boy and his 2-year-old sister at the motel to be cared for by Smith.

    State District Judge Mary Marlowe Sommer postponed Smith’s trial this month — just three days before it was set to begin — to give investigators time to pursue new leads in the case, including allegations that Arellano confessed to an acquaintance she had hurt her son.

    “It would be extremely difficult, if not unethical, for the state to go forward with the trial at this point without setting our minds at ease that we do indeed have the right person in the courtroom,” Assistant District Attorney Larissa Breen said during a court hearing.

    Smith is now out on bail with electric monitoring. She still faces a first-degree felony charge that could send her to prison for up to 18 years.

    Arellano’s attorney, Marc Edwards, said Friday that he had just taken her on as a client and could not comment for this story. Arellano hasn’t been charged.

    Smith’s defense lawyer, Stephen Aarons, recently filed a motion asking the court to approve an arrangement that he hopes will encourage the child’s mother to testify on Smith’s behalf at trial, even if it means implicating herself.

    Aarons is asking the court to grant “use immunity” to Arellano, who is listed as a witness for the state. Such immunity would prevent prosecutors from using anything she said on the stand during Smith’s trial to prosecute her for her son’s death.

    The immunity would not prevent the state from prosecuting her based on other evidence.

    Without the immunity, Aarons says in his motion, Arellano will invoke her Fifth Amendment right against self-incrimination by remaining silent during Smith’s trial.

    Arellano attempted to abort her son by self-harm while pregnant, screamed that she did not want the baby and threatened suicide before he was born, the lawyer says in his motion. He also wrote that Arellano gave the baby to Smith about 33 hours before his death. “The baby could have been grabbed by the throat and violently shaken before this final exchange,” Aarons wrote.

    Smith assumed care of Jonathan and his sister on March 10, 2017, according to police reports. She told police she fed him and put him to bed but awoke the next morning to find he was not breathing. She then called 911.

    The child had no visible injuries. Smith told investigators she had used heroin the night before, and police originally speculated she may have rolled over on the child in the night.

    An autopsy revealed the boy died from bleeding in the brain caused by blunt force trauma.

    The father of a man with whom Arellano — then 17 — was involved at the time has since told police that Arellano told his son that she had harmed the boy before delivering him to Smith, according to court filings.

    Assistant District Attorney Breen is opposing Aarons’ motion, saying that granting Arellano immunity would devastate the state’s chances of prosecuting her if the Santa Fe Police Department’s renewed investigation reveals Arellano was responsible for the infant’s death.

    “The state has no doubt Defendant would like to have Ms. Arellano have leave to testify she may have actually killed [Jonathan], if that is indeed what she will say,” Breen wrote in a motion filed Friday in state District Court, “but the court has to look at the potential detriment to the public interest in getting justice for [the baby’s] death.”

    A spokesman for District Attorney Marco Serna said in an email that Smith’s attorney hasn’t provided documentation to support new allegations involving Arellano.

    Woman held in infant death granted release in Santa Fe

    Woman held in infant death granted release
    Rachel Smith sits with attorneys during a hearing in District Court on Tuesday. Smith was being held in the death of 3-month-old she was baby-sitting.PHAEDRA HEYWOODTHE NEW MEXICAN

    Rachel Smith, 27, had been in jail since her March 2017 arrest in connection with the death of the baby boy at a Cerrillos Road motel.

    The infant’s mother — then 17 years-old — had left two children with Smith for five days preceding the death, according to court records, and Smith was living with the children in the Thunderbird Motel when she woke up one morning to find the baby was not breathing.

    Investigators originally speculated that Smith — a heroin addict who admitted shooting up in the bathroom while she was watching the boy and his 2 year-old sister — might have rolled over on the boy. However, an autopsy later revealed the infant had bleeding in his brain consistent with “blunt force trauma.”

    Smith’s defense attorney, Stephen Aarons, filed a motion in November seeking to have the charges dismissed on grounds that her rights to a speedy trial and discovery of evidence had been violated. Among other things, he argued that it took prosecutors about a year to produce Children Youth and Family Department records that could include evidence that the infant’s mother had abused him.

    State District Judge Mary Marlowe Sommer postponed her decision on that motion during a hearing Tuesday, saying she needed to review the Children Youth and Family Department records before ruling.

    Aarons also filed a motion challenging one of the state’s expert witnesses, saying the proposed witness’s opinions on “shaken baby syndrome” as it relates to pinpointing when the child received the fatal injury are not typical and have been contradicted in literature that says determining time of injury is the unreliable “Achilles heel” of forensic pathology.

    Sommer also postponed ruling on that motion Tuesday, directing Aarons and Assistant District Attorney Larissa Breen to expand written briefs on the issue before the judge considers the matter again next month.

  • Sitter’s lawyer requests immunity for mother in testimony about dead boy

    Rachel Smith has spent the better part of the past two years in the county jail awaiting trial on a charge that she caused the death of a 3-month-old infant left in her care in a Cerrillos Road motel room in 2017.

    But Smith’s defense attorney and prosecutors recently told a state district judge that new evidence raises the possibility that the child’s mother, Angel Arellano, might have inflicted the injuries that led to the death of Jonathan Valenzuela.

    Arellano had dropped off the boy and his 2-year-old sister at the motel to be cared for by Smith.

    State District Judge Mary Marlowe Sommer postponed Smith’s trial this month — just three days before it was set to begin — to give investigators time to pursue new leads in the case, including allegations that Arellano confessed to an acquaintance she had hurt her son.

    “It would be extremely difficult, if not unethical, for the state to go forward with the trial at this point without setting our minds at ease that we do indeed have the right person in the courtroom,” Assistant District Attorney Larissa Breen said during a court hearing.

    Smith is now out on bail with electric monitoring. She still faces a first-degree felony charge that could send her to prison for up to 18 years.

    Arellano’s attorney, Marc Edwards, said Friday that he had just taken her on as a client and could not comment for this story. Arellano hasn’t been charged.

    Smith’s defense lawyer, Stephen Aarons, recently filed a motion asking the court to approve an arrangement that he hopes will encourage the child’s mother to testify on Smith’s behalf at trial, even if it means implicating herself.

    Aarons is asking the court to grant “use immunity” to Arellano, who is listed as a witness for the state. Such immunity would prevent prosecutors from using anything she said on the stand during Smith’s trial to prosecute her for her son’s death.

    The immunity would not prevent the state from prosecuting her based on other evidence.

    Without the immunity, Aarons says in his motion, Arellano will invoke her Fifth Amendment right against self-incrimination by remaining silent during Smith’s trial.

    Arellano attempted to abort her son by self-harm while pregnant, screamed that she did not want the baby and threatened suicide before he was born, the lawyer says in his motion. He also wrote that Arellano gave the baby to Smith about 33 hours before his death. “The baby could have been grabbed by the throat and violently shaken before this final exchange,” Aarons wrote.

    Smith assumed care of Jonathan and his sister on March 10, 2017, according to police reports. She told police she fed him and put him to bed but awoke the next morning to find he was not breathing. She then called 911.

    The child had no visible injuries. Smith told investigators she had used heroin the night before, and police originally speculated she may have rolled over on the child in the night.

    An autopsy revealed the boy died from bleeding in the brain caused by blunt force trauma.

    The father of a man with whom Arellano — then 17 — was involved at the time has since told police that Arellano told his son that she had harmed the boy before delivering him to Smith, according to court filings.

    Assistant District Attorney Breen is opposing Aarons’ motion, saying that granting Arellano immunity would devastate the state’s chances of prosecuting her if the Santa Fe Police Department’s renewed investigation reveals Arellano was responsible for the infant’s death.

    “The state has no doubt Defendant would like to have Ms. Arellano have leave to testify she may have actually killed [Jonathan], if that is indeed what she will say,” Breen wrote in a motion filed Friday in state District Court, “but the court has to look at the potential detriment to the public interest in getting justice for [the baby’s] death.”

    A spokesman for District Attorney Marco Serna said in an email that Smith’s attorney hasn’t provided documentation to support new allegations involving Arellano.

    (c) 2019 Santa Fe New Mexican, reprinted with permission

  • Court questions appeal in Fabian Gonzales case

    BY KATY BARNITZ / JOURNAL STAFF WRITER
    Court questions appeal in Fabian Gonzales case

    Fabian Gonzales sits with his attorney, Stephen Aarons, left, and his former lawyer, Tom Clark, right, at a hearing in District Court in September. (Adolphe Pierre-Louis/Journal)

    ALBUQUERQUE, N.M. — The state Court of Appeals is asking the District Attorney’s Office to explain whether its appeal in the Fabian Gonzales case should be dismissed as moot following his cousin’s no contest plea.

    Gonzales, along with his cousin Jessica Kelley, are defendants in a case centered on the death of 10-year-old Victoria Martens. In an agreement last month with the DA’s Office, Kelley pleaded no contest to reckless child abuse resulting in death, tampering with evidence and aggravated assault. She also promised to testify against Gonzales.

    Prosecutors in September appealed Judge Charles Brown’s decision to exclude statements Jessica Kelley made in jail, along with evidence of her drug use and prior convictions.

    Gonzales had been set for trial in mid-October, but the appeal put his case on hold indefinitely.

    In an order filed last Thursday, the Court of Appeals noted that Kelley’s plea agreement and availability to testify may have rendered moot the argument asserted in the appeal.

    A spokesman for the DA’s Office said prosecutors will file a response in coming days.

    Gonzales’ attorney Stephen Aarons filed a response asking the court to dismiss the appeal and send the case back to the District Court for trial.

  • Plea deal accepted in death of Victoria Martens

    ELISE KAPLAN / JOURNAL STAFF WRITER

    Copyright © 2019 Albuquerque Journal reprinted with permission

    Jessica Kelley will not be going to trial in the brutal slaying of Victoria Martens.

    In a nearly empty courtroom Monday – watched only by the media, a couple of investigators and Victoria’s crying grandparents – 34-year-old Kelley pleaded no contest to child abuse recklessly caused resulting in death, tampering with evidence and aggravated assault.

    The plea was accepted by Judge Charles Brown.

    She faces a total of 50 years in prison. Since she has two prior felony convictions, she will be sentenced as a habitual offender, which adds 20 years in prison to the sentence.

    But Kelley has the possibility of cutting her time in prison down to 20 years total with good behavior.

    The plea agreement is similar to one Brown rejected last September.

    Although the District Attorney’s Office and Kelley’s defense attorneys had agreed to that deal at the time, Judge Brown said they had not presented enough evidence that Kelley was guilty of child abuse.

    At a news conference after the plea hearing, District Attorney Raúl Torrez said the primary difference this time is that Kelley is pleading “no contest” – or saying while she is not admitting guilt, she is not contesting the state’s narrative.

    “We were able to fashion an agreement that substantially exposes Ms. Kelley to the same amount of time in the Department of Corrections and satisfies the concerns of the court,” Torrez said. “It also brings some finality at least to the second of the three suspects that are charged with the death of Victoria Martens.”

    Kelley is the second suspect to take a plea deal in the case.

    Victoria’s mother, Michelle Martens, pleaded guilty to child abuse recklessly caused resulting in death over the summer, and she faces between 12 and 15 years in prison.

    Martens’ boyfriend, Fabian Gonzales, is charged with child abuse resulting in death and tampering with evidence. His trial has been delayed pending a ruling by the New Mexico Court of Appeals.

    His attorney, Steve Aarons, said his client is innocent and will not take a plea deal.

    “We are disappointed that the prosecution settled for a child abuse conviction against Jessica Kelley for her brutal murder and dismemberment of Victoria Martens,” Aarons wrote in an email. “On the other hand, by pleading and agreeing to testify as the prosecution’s star witness, Kelley will be subject to cross examination at our trial.”

    Although police initially said Gonzales and Kelley stabbed and strangled Victoria while Martens watched, prosecutors now say an unidentified man was retaliating against Gonzales when he went to Martens’ apartment and killed her daughter.

    They say that man’s partial DNA sample was left on the little girl’s body and he has been indicted as a “John Doe.”

    Torrez said he hopes the plea deal his office struck with Kelley will strengthen the case against Gonzales and will help identify and prosecute John Doe.

    No sexual assault

    Less than 24 hours after the August 2016 morning when 10-year-old Victoria’s body was found mutilated and on fire in the bathtub of her mother’s Northwest Albuquerque apartment, detectives arrested Martens, Gonzales and Gonzales’ cousin, Kelley.

    They were all charged with murder, child abuse and other charges, and Gonzales and Kelley were charged with raping the little girl.

    On Monday, Mark Earnest, Kelley’s defense attorney, announced that over the past two months experts have determined that contrary to the findings in the initial autopsy report, there was not any evidence that Victoria was raped the night she was killed.

    “In totality these three experts that I’m talking about have over 100 years (of experience) …” he said. “They determined that no sexual assault took place. Despite that, early on, the autopsy report in this case indicated that there was sexual assault.”

    Last Friday, the DA’s Office filed charges dismissing rape charges against Kelley, saying there was “not sufficient evidence to connect Jessica Kelley to the charge of criminal sexual penetration.”

    Earnest said he wishes those charges had been dismissed earlier in order to correct the public’s misconceptions about the case.

    “Part of the pretrial publicity in this case, adding to the horrific nature (and it was a horrific crime), was this added element that Victoria had been raped and sexually assaulted, and she wasn’t,” Earnest said. “That the state did not concede until a few days before the trial in this case.”

    “This case was reviewed by seven additional experts, including forensic pathologists, a child sexual abuse expert, and an expert in the changes in genital tissues from sexually transmitted viruses before the autopsy report was finalized,” Sanchez wrote in the statement. “We strongly refute any claims he was unqualified to handle this case.”

    She said officials will be reviewing the independent findings along with OMI’s autopsy report.

    Torrez said this case has illustrated that all the major players in the criminal justice system “can do a much better job.”

    “We do our very best to be professionals,” he said. “To examine the evidence, to look at every angle of the case, to work with law enforcement partners, our partners at the Office of the Medical Investigator and to examine specific cases, but also to learn important lessons for the future.”

    Not a perfect outcome

    Kelley was “tweaking” and experiencing paranoid delusions from methamphetamine the afternoon she agreed to baby sit Victoria while Martens and Gonzales went out, according to the factual basis included with the plea agreement.

    She should have realized she was too intoxicated and impaired to care for a child. When an unknown man arrived at the apartment, asked for Gonzales and went to Victoria’s room, she should have tried to stop him.

    “The man strangled Victoria to the point of death or to the point of causing great bodily harm,” the statement reads. “Evidence would support a reasonable inference that Kelley knew or should have known that the man posed a substantial and unjustifiable risk of serious harm to Victoria.”

    After the man left, Kelley carried Victoria’s body down the stairs, but was interrupted by Martens’ and Gonzales’ return.

    Kelley told Gonzales that Victoria had been killed and the two cousins “agreed to conceal the crime and dispose of Victoria’s body and to hide the murder from Martens by keeping her way from Victoria’s room.”

    After cleaning up the room, Kelley grabbed a clothes iron and struck Martens on the face with it. This is the basis for the aggravated assault charge. There was a struggle between all three suspects and “a short time later, Martens and Gonzales left apartment 808. Kelley then set Victoria’s body on fire and took down two smoke detectors in the apartment.”

    Torrez, flanked by his two lead prosecutors and Art Gonzales, the deputy chief of investigations at Albuquerque Police Department, said the two detectives who had been assisting with the investigation will continue to do so. Art Gonzales did not comment at the news conference, and in response to request for an interview, an APD spokesman merely said, “Today’s plea agreement is a step toward accountability for this heinous crime.”

    Torrez said he did not make the decision to enter a plea deal lightly and he recognizes it’s not the perfect outcome.

    “It is not something that is ideal in terms of what we all would like to see happen in these cases,” he said. “However we are confronted as prosecutors with our ability to present cases based on the facts and the evidence that we have. We, as you know, identified some issues with the initial investigation which altered the course of our prosecution and had to inform our decision to enter into this plea agreement.”

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  • Jessica Kelley pleads no contest to child abuse in Martens case

    BY ELISE KAPLAN / JOURNAL STAFF WRITER

    ALBUQUERQUE, N.M. — One day before the first trial in the Victoria Martens case was scheduled to begin, the defendant, 34-year-old Jessica Kelley pleaded no contest to child abuse recklessly caused, resulting in death, tampering with evidence and aggravated assault.

    She faces 50 years in prison, with the possibility to get out in a little over 20 years for good behavior.

    Kelley is the second defendant in the high profile case to plead in the case.

    Victoria’s mother, Michelle Martens, pleaded guilty to child abuse resulting in death over the summer. She faces between 12 and 15 years in prison with the opportunity for that to be cut in half for good behavior.

    In August 2016, Victoria was discovered dead in her mother’s Northwest Albuquerque apartment. She had been strangled, stabbed and dismembered and her body was on fire.

    Albuquerque Police Department detectives arrested Martens, Martens’s boyfriend Fabian Gonzales and Gonzales’s cousin Kelley and charged them with murder, child abuse, rape and tampering with evidence. However, in late June, District Attorney Raul Torrez announced much of what was known about the case is “simply not true.”

    The most serious charges against Gonzales were dismissed. His trial, which was supposed to begin in October has been delayed pending a decision by the New Mexico Court of Appeals.

    Copyright (c) Albuquerque Journal 2018
    Reprinted with Permission