A 10-year-old boy who is the only witness to the shotgun slaying of a friend by a 12-year-old Antelope Valley boy told investigators that the defendant loaded the weapon before pointing it at the victim, a Sheriff's Department homicide detective testified Monday in Sylmar Juvenile Court.
It was the first testimony contradicting the 12-year-old's statements that the gun was already loaded.
Detective Frank J. Salerno said Bruce Scalph Jr. described how the defendant, who is charged with murder, allegedly opened the chamber of the shotgun and inserted a shell before the shooting death of Thomas Hernandez, 10, of Pearblossom. The Oct. 22 shooting took place at the home of the defendant. Scalph told another deputy the 12-year-old bullied him and Hernandez in the days before the shooting, according to testimony.
But the defendant's attorney, Fredric J. Warner, said Scalph has since retracted his statements that the 12-year-old loaded the gun and denies telling a deputy that the defendant was a bully.
Juvenile Court Commissioner Gary A. Polinsky rejected Warner's attempt to put Scalph on the stand Monday, agreeing with Deputy Dist. Atty. Chesley McKay's objection that the juvenile hearing calls only for a presentation of the basic facts by the prosecution.
Polinsky ordered the 12-year-old boy's release from Sylmar Juvenile Hall on Monday pending trial. McKay has argued that the boy should remain in detention because he has made statements indicating that he was suicidal, but Polinsky said he acted after reading a recent psychological evaluation of the boy.
"I am not convinced that he cannot be safe in the community," Polinsky said. Under his ruling, the boy will live with his mother at the home of an aunt and be allowed to attend classes. Polinsky said the boy should not live at his Pearblossom home because his stepfather is a gun collector.
The shooting took place on a weekend when the boy's parents were out of town and the boy was staying with Scalph, a neighbor. The defendant's house was locked, but he, Scalph and Hernandez climbed in through a window, investigators said.
The 12-year-old told detectives after the shooting that he did not think the gun was loaded, and said "I must have pulled the trigger," Salerno said. He described the boy as "very quiet" after the shooting.
According to Salerno's testimony, Scalph told detectives that the 12-year-old picked up the shotgun, which was near--but not in--a locked container of guns in his father's room. Salerno said Scalph believed the boy retrieved the shell from a closet, although under questioning Salerno said he did not recall a closet in the room. Scalph showed detectives with his hands how the 12-year-old opened the weapon and loaded it before pointing it at Hernandez, Salerno said.
Salerno acknowledged that Scalph has subsequently contradicted the statements he made to another deputy the night of the shooting that described the 12-year-old as a "bully" to Hernandez and Scalph.
Warner said Scalph's admissibility as a witness will be a key issue in the trial. The boy, who like the 12-year-old is in a special program at school for students with learning disabilities, is the "nexus" of the district attorney's case, Warner said.
"He may not qualify as a witness," Warner said. "A judge will have to decide that."
If he does testify, Warner said, the boy will support Warner's contention that the shooting was an accident that occurred as the 12-year-old was putting down the shotgun.
In objecting to Warner's attempt to call Scalph to testify, McKay said Warner was trying to intimidate the boy, who McKay said was traumatized by the incident.
McKay said after the hearing that the district attorney's office has not yet decided what degree of murder or manslaughter the boy will be charged with. He has said previously that he does not believe the boy will be accused of first-degree murder.