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Boy Found Innocent in Slaying of Playmate : Justice: The judge says that the prosecution failed to prove that the youngster exhibited gross negligence when he fired his stepfather’s antique shotgun.

TIMES STAFF WRITER

A 13-year-old Pearblossom boy who shot and killed a 10-year-old playmate last October was found innocent of involuntary manslaughter Thursday by a Juvenile Court judge who said prosecutors failed to prove their case.

Los Angeles County prosecutors initially charged the boy, who was 12 at the time of the shooting, with first-degree murder but reduced the charge to manslaughter on the first day of trial two weeks ago because they did not believe the boy intended to kill Thomas Hernandez, whom he had met two days before the shooting.

Sylmar Juvenile Court Judge Morton Rochman said Deputy Dist. Atty. Chesley McKay, who prosecuted the boy, failed to prove that the youth exhibited gross negligence when he fired his stepfather’s loaded antique shotgun Oct. 22, hitting Hernandez in the head. A finding of gross negligence--meaning that the boy could have known the possible consequences of his actions--was required to prove the youth guilty of involuntary manslaughter, the only charge that Rochman said he would consider.

Despite his findings, Rochman said it was outrageous that the boys’ parents kept a loaded gun in the house and accused them of a “high degree of moral culpability.” The boy’s stepfather, who owned the shotgun, testified that he is a gun collector and regularly attends gun shows.

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Defense attorney Frederic Joel Warner argued that the shooting was an accident.

The boy “is a 12-year-old child,” Warner told Rochman at the start of closing arguments Thursday. “They’re trying to show that this 12-year-old child could have knowingly foreseen what could happen by his curiosity in picking up this firearm. . . . This is truly an unfortunate, accidental shooting.”

Warner said the gun went off inadvertently while the boy was returning it to the floor after picking it up to inspect it.

“We now know the firearm was never pointed at Tommy Hernandez and there was never any intent to harm anyone,” Warner said. “This case rises and falls on the picking up of a 65-year-old firearm,” which he said did not have a safety latch and had a light trigger. Hernandez was shot after the youth and a 10-year-old boy entered the house through a window while the older boy’s parents were out of town. The boy was staying at the home of the 10-year-old boy, who lived two blocks away.

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The boy, who took the stand in his own defense Thursday, said that, while the other boys were drinking sodas in the kitchen, he went to his parents’ bedroom to comb his hair in a mirror and saw the shotgun leaning against a gun safe.

“I just looked at it and picked it up,” he said in court Thursday. “It went off. . . . I was scared ‘cause I heard a window break. I put the shotgun back. I saw Tommy lying under the chair.

“I thought he was faking it, so I ran up to him. . . . I lifted him up, and I saw a big gash on his head and felt blood running down my hand,” the boy said.

The boy, who said he had never received any formal gun safety instruction, said he thought the gun was not loaded because “I didn’t think my dad would leave it loaded while he was gone.” McKay said the boy had told Los Angeles County sheriff’s investigators shortly after the shooting that he wanted to show off his stepfather’s gun collection to the other boys. But the boy said he couldn’t remember making that statement and denied that he had entered the house to show off the guns.


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