In a blow that compounded his string of misfortune yet further, 26-year-old Brandon Padilla-Aguilera was arrested last week by the Barstow Police Department on suspicion of murder in the September 18 drowning death of his 2-year-old autistic son.
Four days later, the San Bernardino County District Attorney’s Office balked at characterizing Padilla-Aguilera’s transgression as murder, substituting a charge of reckless endangerment that nevertheless will result in a sentence of 25 years-to-life if he is prosecuted and convicted.
September 18 was a horrible day for Padilla-Aguilera, of Barstow, and his family.
The remnants of Tropical Storm Mario brought widespread rainfall to Southern California that moved across the American Southwest on September 17, worsening on September 18.
Padilla-Aguilera’s grandmother had died earlier that month. Her funeral had been scheduled for September 18. Despite the inclemency, which entailed torrential rains and flash floods that overwhelmed streets, roads and washes in Apple Valley, Barstow, Hesperia, Lucerne Valley and other areas throughout the Mojave Desert, the funeral was held.
After that somber service and the get-together that followed, Padilla-Aguilera and son, Xavier, were making their way home in Padilla-Aguilera’s white sedan. It is not entirely clear what then occurred. Somewhere in the vicinity of Lenwood Road and West Main Street, Padilla-Aguilera reportedly encountered a UPS truck that was positioned sideways in the road and apparently made an effort to drive around it. The vehicle in which Padilla-Aguilera and his son were traveling was propelled off the roadway by floodwaters and was thrust into a wash north of West Main Street.
At 7:12 pm, a phone call to emergency dispatch came in, reporting the swamped vehicle. At 7:14 pm the Barstow Police and Fire Departments were dispatched to the area of West Main Street west of Lenwood Road
According to an informational briefing provided by the City of Barstow the following day, “As police and fire were responding, it was reported that the occupants had been separated from the vehicle and were continuing to travel north with the floodwaters. The occupants of the vehicle were identified as Brandon Padilla Aguilera, age 26, and his son, Xavier Padilla Aguilera, age 2.”
In the city’s official version of events, the vehicle was carried north of West Main Street by the overwhelming force of rushing water. It was at that time that Padilla-Aguilera exited the vehicle with his son.
“Brandon and Xavier were separated as they were being swept away by the floodwaters,” according to the city’s September 19 statement. “Brandon Aguilera was located on an island that had been created by the floodwaters. Brandon Aguilera was rescued by Barstow Fire Department personnel, taken to Barstow Community Hospital and later released.”
As the heavy storm in Barstow continued into late September 18, and into the early morning of September 19, an overnight search for the 2-year-old continued into the daylight hours, for more than 19 hours. Barstow Police, Barstow Fire Protection District, San Bernardino County Sheriffs’ Department, Burlington Northern Santa Fe Railway Police, California Highway Patrol, City of Barstow Public Works, the Barstow Marine Corps Logistics Base Fire Department, Desert Ambulance, and San Bernardino County Fire’s Swift Water Rescue Team, other search and rescue teams and emergency response team members and other volunteers participated in the effort.
“Xavier Aguilera was located, deceased, today at approximately 2:44 pm in the San Bernardino County Flood Control channel south of the Mojave River,” according to the city’s September 19 statement. “It is with profound sadness that the city confirms the discovery of a young child… lost… in the recent flooding incident. [E]mergency responders located the child’s body this afternoon.”
In the immediacy of the incident, the city and its police department evinced compassion toward Padilla-Aguilera without any hint of suspicion.
“Our hearts go out to the family and loved ones during this unimaginably difficult time,” the city’s September 19 release stated. “We extend our deepest condolences to those affected. We ask that the privacy of the grieving family be respected as they navigate this devastating loss. Our thoughts remain with the family and all those affected.”
Over the next several weeks, however, officials with the City of Barstow grew ill-at-ease over reports that Padilla-Aguilera had consulted with an attorney with regard to liability the city had over the flood hazards that have long existed on West Main Street in proximity to the flood channel there, where there is no physical barrier to prevent people or even large objects such as vehicles from being caught in the pull of flood waters moving north.
On Friday, October 17, at roughly half past noon, however, the Barstow Police Department without forewarning rapidly swooped into the middle-class neighborhood proximate and just south of the convergence of Main Street, Interstate 15, Interstate 40, some seven blocks east of the Barstow Junior High School campus, where they served an arrest warrant for Padilla-Aguilera at his residence in the 300 block of Chandler Avenue. Barstow officials acknowledge that Padilla-Aguilera proved a good sport about being taken into custody, offering no resistance. He was booked into the San Bernardino County Sheriff’s Department High Desert Detention Center on a charge of PC 187(a) Murder.
Following Padilla-Aguilera’s arrest, the Barstow Police Department provided a prepared public statement that “Due to the severity of the incident, the Barstow Police Department Detective Division assumed responsibility for the investigation. Over the course of the month-long investigation, detectives spoke with witnesses and gathered evidence. Based on evidence obtained, detectives secured an arrest warrant.”
According to a well-placed individual, the police department’s move against Padilla-Aguilera was intended to render any legal claim or lawsuit he or other members of his family might be contemplating against the City of Barstow unviable. The San Bernardino County District Attorney’s Office, led by District Attorney Jason Anderson, was given a heads-up as to what the Barstow Police Department intended to do. Nevertheless, the Sentinel was told, prosecutors were taken aback when the arrest of Padilla-Aguilera was made for murder.
Virtually from the second Padilla-Aguilera was in custody, the district attorney’s office began backpedaling. Whereas the Barstow Police Department was pushing a case of second degree murder, asserting that Padilla-Aguilera willingly and purposefully exposed his son to death when the vehicle they were riding in was caught in the flood waters, upon engaging with the known facts of the case, prosecutors recognized that case would go nowhere and take the credibility of the district attorney’s office with it.
The Sentinel spoke with an individual who served at the senior level of the San Bernardino County District Attorney’s Office and as a lead prosecutor with the district attorney’s office of an adjoining county over a period of 27 years. “The DA’s office is not supposed to take the civil ramifications of a circumstance into account, but I’m not going to lie to you and say that doesn’t happen,” said that prosecutor. “Ethically, we should say to the agency or the governmental jurisdiction: ‘Don’t make your problem our problem.’ In this case, the filing deputy [i.e., deputy district attorney responsible for signing off on criminal complaints] agreed to back them [the Barstow Police Department] up. I can’t tell you why – maybe as a favor or because of a past relationship or a sense of loyalty, feeling a need, which is understandable, to be a team player. But those jackasses [the Barstow Police Department] just way overcharged. I understand the theory. The theory is crystal clear: The driver knowingly put himself and his son into an inherently dangerous situation with possible fatal consequences. The theory assumes the hazard was clearly marked, with posted ‘Don’t Drive Past This Point’ signs in a situation with clear visibility. That theory doesn’t sound too peculiar until you look at the facts. There was absolutely no intent here. It wasn’t murder one. It wasn’t murder two. You have a long way to go to prove manslaughter. The district attorney’s office looked at the murder charge and said, ‘We’re not going that far.’”
Indeed, what the district attorney’s office substituted in charging Padilla-Aguilera is one count of PC192c(1) – vehicular manslaughter with gross negligence and one count of PC273a – child abuse/endangerment under circumstances or conditions likely to cause great bodily injury or death.
The PC273a charge was a “gift card” to Barstow and the Barstow Police Department, the prosecutor said. It is meant, the prosecutor said, to intimidate and overwhelm Padilla-Aguilera, who by all accounts lacks sophistication and the ready wherewithal to withstand being processed through the justice system.
When it comes to cashing in the gift card, however, Barstow and its police department will very likely come up short, the prosecutor said. PC273a includes a special allegation of willful harm or injury resulting in death, meaning getting a conviction will entail making a show of intent on Padilla-Aguilera’s part.
The idea here, the prosecutor said, is to get Padilla-Aguilera to fold before the matter goes to trial by copping a plea to the PC192c(1) – vehicular manslaughter with gross negligence charge, which carries with it a sentence of two, four or six years in state prison, or a lesser charge, in exchange for the dismissal of the California Penal Code §273a count, which applies to “Any person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death” and involves a mandatory 25 years-to-life sentence.
The problem is, the prosecutor said, that if Padilla-Aguilera has the assistance of even minimally competent counsel, the prosecution will not be able to establish that he utilized the completely unforeseen circumstance of the flash flood in Barstow on September 18 to assault his own son when the circumstance, including photos and videos the City of Barstow and its safety division, including its police department, have released show Padilla-Aguilera’s vehicle being swept away. That evidence alone, the prosecutor said, establishes Padilla-Aguilera, who appears to have used questionable judgment and made a poor decision by driving around the UPS truck into the path of the overwhelming flow of water on West Main Street, was caught in a situation in which he panicked, and then made a fateful and fatal decision to try to get out of the vehicle with his son.
Existing evidence, including that provided by the city and its police department in the form photos and videos, as well as other known facts, indicates Padilla-Aguilera on September 18 encountered a situation not of his own making, in which he, his son and others were exposed to hazards that were, arguably, a consequence of negligence on the part of the city, representing liability on the part of the public agency which arrested him on a charge the district attorney’s office refused to sustain. Upon reaching West Main Street, Padilla-Aguilera did not encounter a barrier erected by the city but rather a UPS truck. Padilla-Aguilera was himself nearly killed by the raging waters. When he was hospitalized after being found that night, he was treated for a concussion, hypothermia, water in his lungs, multiple lacerations, bruising, and an infection caused by a waterborne bacteria. There have been previous flash floods in the City of Barstow which transformed West Main Street into an unnavigable torrent of irresistible water. The city did not take adequate steps to redress the circumstance or reduce the hazard.
Padilla-Aguilera is set for another court appearance on October 27.