Gaxiola no longer faces the death penalty for the murder of Brisenia Flores

Brisenia Flores

Former Arivaca resident Albert Robert Gaxiola no longer faces the death penalty in connection with the May 30, 2009, murder of 9-year-old Brisenia Flores during a home invasion that saw her father killed and mother seriously wounded.

On July 15, a Pima County Superior Court jury sentenced Gaxiola, 44, to life in prison for the shooting death of Raul “Junior” Flores. The jury was unable to reach a decision regarding the appropriate punishment in the death of Brisenia.

Judge John S. Leonardo granted the motion withdrawing the death notice during a hearing Friday morning. Deputy County Attorney Rick Unklesbay told Leonardo that the Homicide Panel in the county attorney’s office had reviewed the pros and cons of continuing to seek the death penalty and that he and Deputy County Attorney Kellie Johnson had spoken with surviving victim Gina Gonzalez as to her preference. “It’s important for Mr. Gaxiola to know that Ms. Gonzalez was in agreement to withdraw this notice,” he said.

On July 1, Gaxiola, 44, was found guilty on two counts of first-degree murder in the shooting deaths of Flores and his daughter, as well as six other charges including attempted first-degree murder in connection with the wounding of surviving victim Gina Gonzalez.

A sentencing hearing on all eight counts is scheduled for Aug. 15 at 10:30 a.m. Now that the death request has been withdrawn Leonardo will have the option of sentencing Gaxiola to natural life in prison or life in prison with an opportunity to apply for a parole hearing after he has served 35 calendar years in prison. The 35-year threshold applies in Brisenia’s case because she was younger than 15-years-old.

In regards to the murder of Raul Flores, Leonardo could sentence Gaxiola to natural life in prison or with an opportunity to apply for a parole hearing after he has served 25 calendar years. Earlier this year, co-defendants Shawna Forde and Jason Eugene Bush were each sentenced to death by juries on the murder counts involving Raul and Brisenia Flores and they received additional prison time, Forde 65 years and Bush 78 years, for their convictions on the other six counts. Leonardo will have the option to hand down similar sentences to Gaxiola on Aug. 15.

Gaxiola given life in prison for the murder of Raul Flores, no verdict on murder of Brisenia Flores

Albert Gaxiola
(pool photo by Mamta
Popat/Arizona Daily
Star)

   Relief was the expression found on the faces of former Arivaca resident Albert Robert Gaxiola and members of his defense team on Friday afternoon as a Pima County Superior Court jury sentenced him to life in prison for the May 30, 2009, shooting death of Arivaca resident Raul “Junior” Flores. The jury was unable to reach a decision regarding the appropriate punishment in the death of 9-year-old Brisenia Flores. 

Relief 

   The jury of seven males and five females took a little over 11 hours before returning their verdicts to a surprised audience of onlookers in the courtroom of Judge John S. Leonardo. “I’m relieved,” said defense counsel Steven D. West, immediately following the reading of the verdict.

West said Gaxiola had similar feelings. “I think he was greatly relieved,” West said.

West was unable to pinpoint what evidence the defense had presented that led the jury to the verdict of life in prison. “I’m sure the family emotion, I would think, had some effect on them,” he said, referring to the numerous members of Gaxiola’s family who testified during the sentencing phase of the trial. “They sincerely appeared like they cared about Albert greatly.”

Obviously, West and his client were prepared for a death sentence. “I think we all did. I wasn’t inside Albert’s head, but I’m sure that he was,” he said.

Gaxiola’s sister, Sonia Muniz who testified during the penalty phase of the trial was at home in California when she heard news if the verdict. “As we understand it right now, we’re happy with the outcome,” she said. “This isn’t the end of the world and there’s still more to come. We haven’t exhaled completely.”

Muniz agreed with west that it was Gaxiola’s family that made a difference in the outcome. “During the mitigation phase we were able to paint his character and the jury was able to see that,” she said.

West admitted he is not an expert when guessing what juries will do, but the verdict they returned with the hung jury of the murder conviction involving Brisenia was surprising. “I would have never guessed the combination of things,” he said.

What now

Raul and Brisenia
Flores

On July 1, Gaxiola, 44, was found guilty on two counts of first-degree murder in the shooting deaths of Flores and his daughter, as well as six other charges including attempted first-degree murder in connection with the wounding of surviving victim Gina Gonzalez. Asked if she had any thoughts on the verdict and a lack of a verdict Gonzalez declined. “No, I’m not interested,” she said, as she quickly left the courtroom.

Gonzalez, however, will be talking with Deputy County Attorneys Rick Unklesbay and Kellie Johnson in the near future to provide input regarding the jury’s inability to decide the penalty for the murder of her daughter, Brisenia. “We’re going to talk to her,” Unklesbay said.

The prosecutors will also consult colleagues regarding whether or not to withdraw their request for the death penalty. “We do a panel on all murder cases,” Unklesbay explained. “We’ll talk to everybody concerned and make a decision.”

West was unwilling to speculate as to how the prosecution will proceed. “That’s strictly up to them and I’d rather not comment,” he said.

Decision time

A hearing on whether the death request will be withdrawn on the count involving the murder of Brisenia is set for July 29 at 10 a.m. If the death request is withdrawn then Leonardo will have the option of sentencing Gaxiola to natural life or whether he will have an opportunity to apply for a parole hearing after he has served 35 calendar years in prison. The 35-year threshold applies in Brisenia’s case because she was younger than 15-years-old.

A sentencing hearing has been set for Aug. 15 at 10:30 a.m. on the other six counts for which Gaxiola was convicted, as well as the murder count for which he will receive life in prison. It is up to Leonardo to determine if Gaxiola will be sentenced to natural life or whether he will have an opportunity to apply for a parole hearing after he has served 25 calendar years in prison.

No new neighbors

Already on death row in this case is co-defendant Shawna Forde, 43, the founder of the splinter group Minuteman American Defense. Testimony from prosecution witnesses in her trial earlier this year painted Forde as a wannabe black ops leader who proposed to finance her Blackwater-type operations by raiding suspected drug cartel operations in and around Arivaca in southern Arizona. Testimony showed that Forde intended to take the drugs, guns and money found during those raids to finance her continuing operations. Flores was their first target. Besides two death sentences, Forde was sentenced to 65 years in prison on the six other counts.

Also on death row in this case is co-defendant Jason Eugene Bush, 34, director of field operations for Minuteman American Defense, who during a post-arrest interview told detectives that it was his understanding that no one at the Flores home would be harmed. Bush also told detectives that he and Forde had entered the Flores home first because Gaxiola was concerned that he would be recognized. And, Bush told detectives that he was told their mission was to rip off marijuana and money owned by Raul Flores. Besides the two death sentences, Bush was given and additional 78 years in prison regarding the six other counts.

Gaxiola’s role

Testimony in this trial showed that Gaxiola, a longtime drug smuggler in the Arivaca area, was an intelligence resource for Forde and Bush who were seeking drugs and money to fund her minuteman operations and to provide living expenses. At the same time, the death of Flores eliminated competition in local drug smuggling activities for Gaxiola and his longtime business partner, Oin Oakstar. In exchange for a favorable plea agreement, Oakstar testified for the prosecution in all three trials.

Of the three defendants, Gaxiola was the only one that chose to make a statement either through testimony or in the form of allocution. The statement by Gaxiola was unsworn and not subject to cross-examination. “Flores Family. Gonzalez Family. There’s nothing that I can do or say that can relieve the pain and suffering from the loss of a loving husband or the loss of a precious daughter. All I can say is that I am truly sorry.”

Gaxiola’s fate remains in the hands of the jury

Albert Gaxiola
(pool photo by Jill
Torrance/Arizona
Daily Star)

The Pima County Superior Court jury that will decide if former Arivaca resident Albert Robert Gaxiola spends the rest of his life in prison or is executed by lethal injection began deliberating that issue on Thursday morning..

On July 1, Gaxiola, 44, was found guilty on two counts of first-degree murder in the shooting deaths of Raul “Junior” Flores and his daughter Brisenia, as well as six other charges. Earlier this year, Jason Eugene Bush and Shawna Forde were found guilty on the same charges in separate trials. They both ended up with death sentences imposed by the juries hearing the evidence of their crimes.

The jury deliberated for about seven hours on Thursday before retiring for the evening. The jury of seven males and five females is expected to resume deliberations at 9 a.m. on Friday morning.

Gaxiola’s fate is now in the hands of the jury

Albert Gaxiola
(pool photo by Jill
Torrance/Arizona
Daily Star)

The Pima County Superior Court jury that will decide if former Arivaca resident Albert Robert Gaxiola spends the rest of his life in prison or is executed by lethal injection will begin deliberating that issue on Thursday morning..

On July 1, Gaxiola, 44, was found guilty on two counts of first-degree murder in the shooting deaths of Raul “Junior” Flores and his daughter Brisenia, as well as six other charges. Earlier this year, Jason Eugene Bush and Shawna Forde were found guilty on the same charges in separate trials. They both ended up with death sentences imposed by the juries hearing the evidence of their crimes.

Closing arguments

The jury was told, Thursday afternoon, that Gaxiola make some bad choices when he became involved with Forde and Bush and especially with his drug smuggling buddy Oin Oakstar. “Albert’s mistake is associating with these people,” said defense counsel Steven D. West.

West also suggested to the jury that they needed to carefully consider his client’s moral culpability in this situation. “What shaped his morality and value systems? How did he get here? How was he damaged?” he asked, rhetorically.

West suggested that the bottom line is that Gaxiola is far from being the worst of the worst. “Our society has reserved the death penalty for the worst of the worst. The people who you just don’t want to take a chance that they will ever get back out into society,” he said.

Moral culpability

Deputy County Attorney Rick Unklesbay admitted to the jury that the defense had proven that Gaxiola had endured a less than ideal childhood. “They’ve done that and I’m not going to suggest otherwise,” he said. “You get to decide what weight, how much weight any of these factors merits in light of the circumstances of the murders. More importantly, you get to decide is moral culpability in light of the circumstances of the murders what weight are you going to give to things that happened to this defendant when he was two, three or four in light of what he did when he was 42.”

Unklesbay pointed out that Gaxiola made some very fateful decisions two years ago that landed him in his current predicament. “At age 42, when he began making plans to do away with Junior Flores. At 42 years of age, he was making that hitless in his notebooks, When he was 42 years of age he met Shawna Forde and the two of them getting together bringing in Jason Bush to commit these crimes,” he told the jury. “That factors in, I would suggest to you, to the defendant’s moral culpability.”

Allocution

At the conclusion of the presentation of evidence in the penalty phase of the trial, the defendant is given the opportunity to allocate, which according to yourdictionary.com is “The procedure during sentencing when a judge gives a convicted defendant the opportunity to make a personal statement on his own behalf to mitigate the punishment that is about to be imposed.”


The statement by Gaxiola was unsworn and not subject to cross-examination. “Flores Family. Gonzalez Family. There’s nothing that I can do or say that can relieve the pain and suffering from the loss of a loving husband or the loss of a precious daughter. All I can say is that I am truly sorry.”

Defense counsel Jack L. Lansdale reiterated his client’s statements during final closing arguments to the jury. “He feels very bad about what happened to this family,” he said.

Lansdale asked the jury to do what it right when deciding the fate of his client. “We feel at the end of the day that when you evaluate all of the facts and circumstances you have the right to use that term mercy,” he said. “This is not an eye for an eye, tooth for a tooth situation. This is not a cold-blooded killer. This is not a worst of the worst situation.”

Gaxiola tells the Flores and Gonzalez families he is ‘truly sorry’

Albert Gaxiola
(pool photo by
Mamta Popat/Arizona
Daily Star)

Former Arivaca resident Albert Robert Gaxiola told the victims of the May 30, 2009, home invasion in Arivaca that he was “truly sorry” for the deaths of Raul “Junior” Flores and his daughter, Brisenia.

On July 1, Gaxiola, 44, was found guilty on two counts of first-degree murder in the shooting deaths of Raul “Junior” Flores and his daughter Brisenia, as well as six other charges. Earlier this year, Bush and Forde were found guilty on the same charges in separate trials. They both ended up with death sentences imposed by the juries hearing the evidence of their crimes.

At the conclusion of the presentation of evidence in the penalty phase of the trial, the defendant is given the opportunity to allocate, which according to yourdictionary.com is “The procedure during sentencing when a judge gives a convicted defendant the opportunity to make a personal statement on his own behalf to mitigate the punishment that is about to be imposed.”

The statement by Gaxiola was unsworn and not subject to cross-examination. “Flores Family. Gonzalez Family. There’s nothing that I can do or say that can relieve the pain and suffering from the loss of a loving husband or the loss of a precious daughter. All I can say is that I am truly sorry.”

With that, the attorneys began closing arguments in the case.

Questions continue regarding methods used by expert witness

Mark Cunningham

The Pima County Superior Court jury that will decide if former Arivaca resident Albert Robert Gaxiola spends the rest of his life in prison or is executed by lethal injection continued to hear testimony Wednesday morning regarding the negative factors in the defendant’s life that made him the person he is today.

On July 1, Gaxiola, 44, was found guilty on two counts of first-degree murder in the shooting deaths of Raul “Junior” Flores and his daughter Brisenia, as well as six other charges. Earlier this year, Bush and Forde were found guilty on the same charges in separate trials. They both ended up with death sentences imposed by the juries hearing the evidence of their crimes.

Mark D. Cunningham, Ph.D., is a board certified clinical and forensic psychologist from Dallas, Tex. Cunningham was hired by the defense to review Gaxiola’s life to this point with an eye towards explaining how he came to be convicted of two counts of first-degree murder and is facing the death penalty. 

Cross-examination resumes

Deputy County Attorney Rick Unklesbay resumed cross-examination asking Cunningham to comment on how persons make the choice they make. “People are different in that they can make choices in their lives about who they want to be and what kind of life they’re going to live, isn’t that true doctor?” he asked.

“Yes and no,” Cunningham responded. “What happens is that the people who have these risk exposures a much greater percentage of those end up choosing badly.”

Unklesbay asked Cunningham about his work testifying around the country on behalf of defendants facing the death penalty. “In all of those cases I’ve been retained by the defense,” Cunningham said.

“You don’t get hired by the prosecution do you?” Unklesbay asked.

“No sir. The phone doesn’t ring,” Cunningham responded. “I would certainly provide this testimony if your office requested it.”

“Don’t wait by the phone,” Unklesbay responded.

“Yes sir,” Cunningham said.

The cost

Unklesbay asked Cunningham what he was being paid to provide his opinions in this case. “My fee is $300 per hour,” he responded.

“What is your fee in this particular case?” Unklesbay asked.

“Before I came here a couple of days ago I had about 50 hours into this case. I’ve been here two-and-a-half days in addition to that,” Cunningham testified.

“Is it accurate to say that your final bill is going to be somewhere between $25,000-$30,000?” Unklesbay asked.

“That’s a little high. I would expect it’s going to be in the low 20s,” Cunningham responded.

Scope

Unklesbay then reminded Cunningham and the jury that his scope of inquiry was somewhat limited. “Since you didn’t review the police reports and you didn’t read the witness statements in this case you do not know what choices Mr. Gaxiola made in completely this offense. Is that accurate sir?” he asked.

“The jury has found…” Cunningham started to answer.

“I’m not asking what the jury has found, sir, I’m asking…” Unklesbay interrupted.

“I’m going to object, your honor,” said defense counsel Steven D. West.

“Overruled. The witness will answer the question,” said Judge John S. Leonardo.

“You don’t know what choices Mr. Gaxiola made in this case because you didn’t review the case and you didn’t speak to him,” Unklesbay repeated.

“I don’t know because I wasn’t there. If I had been there and observed it then I would know. Beyond that I don’t know,” Cunningham responded.

“That’s all I have,” Unklesbay said.

In all, Cunningham testified a little over four hours starting Tuesday afternoon and ending on Wednesday morning.

Gaxiola jury hears from psychologist who has never met the defendant

The Pima County Superior Court jury that will decide if former Arivaca resident Albert Robert Gaxiola spends the rest of his life in prison or is executed by lethal injection heard testimony Tuesday afternoon regarding the negative factors in the defendant’s life that made him the person he is today.

On July 1, Gaxiola, 44, was found guilty on two counts of first-degree murder in the shooting deaths of Raul “Junior” Flores and his daughter Brisenia, as well as six other charges. Earlier this year, Bush and Forde were found guilty on the same charges in separate trials. They both ended up with death sentences imposed by the juries hearing the evidence of their crimes.

The science explained

Mark Cunningham

Mark D. Cunningham, Ph.D., is a board certified clinical and forensic psychologist from Dallas, Tex. Cunningham was hired by the defense to review Gaxiola’s life to this point with an eye towards explaining how he came to be convicted of two counts of first-degree murder and is facing the death penalty. “He’s 42 when this offense occurs. Isn’t that kind of late in the day to be talking about things that happened to you, particularly in your first four years of life,” Cunningham said.

Cunningham testified that the U.S. Department of Justice has recognized that early childhood factors do make a difference. “The influence of family environment on a child’s social development lasts a lifetime. You are building the person that’s going to be present from here on,” he testified.

Mom’s influence

Cunningham was asked about the influence of Gaxiola’s mother, Sandra. “There is her partying with her children. This includes when they’re teenagers. She’s smoking weed with them when they join her in Arizona. She was using cocaine, drinking smoking weed,” he testified. “Sonia (Muniz, Gaxiola’s sister) talked about how Sandra enlisted her side-by-side in the drug business. There was no sense of okay I’m in this life, but I don’t want my children there. Instead, she is actively incorporating them and making them a part of this.”

Sandra Gaxiola
Sanchez

Cunningham related an incident involving Sandra and her son where he was asked to provide armed support. “She goes into what is potentially a drug deal that is going to go bad, gives him a gun and tells him that if I’m not out in several minutes you come in guns blazing,” he testified. “She came out of the house all smiles and said that everything was fine and that I’m going to party with these guys and you can go on.”

Cross-examination

During cross-examination, Deputy County Attorney Rick Unklesbay asked Cunningham if he sat down with the defendant about his life and the various turns he took while growing up. “I virtually never ask that of a defendant,” Cunningham testified.

“So, you rely on folks that haven’t seen him much in the course of his life, like Sandra who abandoned him at age two and you relied on his father who has seen him twice in his life? You relied on folks that were not around during the course of the commission of this offense to find out what impact Mr. Gaxiola’s past life had on his choices in this case?” Unklesbay asked.

“That’s not correct. I used those individuals to identify the history of damaging factors that were present in his background. Then I used the research to make a connection between those factors and the kinds of behaviors he exhibited in adulthood, including this offense,” Cunningham relied.

“My question is, I think you answered it, my question is not once did you sit down with Mr. Gaxiola and ask him anything about what affect his prior life had on him making choices in May 2009?” Unklesbay asked. “That’s correct,” Cunningham replied. “Not once did you do that?” Unklesbay clarified. “That’s correct,” Cunningham replied, again.

Unklesbay also pointed out that Cunningham had not met Gaxiola until his testimony in court on Tuesday afternoon.

Other resources

Unklesbay also pointed out that Cunningham had not read any police reports, witness statements or other documents related to the deadly home invasion. “I requested of the defense to provide a basic description of what transpired,” he testified.

“From that you have told this jury over the last three hours how it is that you believe Mr. Gaxiola came to make choices at age 42 that put him in the seat that he’s in right now?” Unklesbay asked. “That’s correct,” Cunningham replied.

Testimony by Cunningham is set to resume at 10:30 a.m. on Wednesday.

Gaxiola jury hears evidence of other alleged crimes by Forde and Bush

The Pima County Superior Court jury that will decide if former Arivaca resident Albert Robert Gaxiola spends the rest of his life in prison or is executed by lethal injection heard evidence Tuesday morning of other alleged crimes committed by co-defendants Jason Eugene Bush and Shawna Forde.

On July 1, Gaxiola, 44, was found guilty on two counts of first-degree murder in the shooting deaths of Raul “Junior” Flores and his daughter Brisenia, as well as six other charges. Earlier this year, Bush and Forde were found guilty on the same charges in separate trials. They both ended up with death sentences imposed by the juries hearing the evidence of their crimes.

California dreaming

Pima County Sheriff’s Department Det. Juan Carlos Navarro was called back to the witness stand by the defense to answer questions regarding an armed robbery/home invasion and a burglary theta took place in Redding Lake and Shasta Lake, Calif., shortly after the fatal home invasion in Arivaca.

Navarro confirmed that Forde and Bush stayed at the Alamo Motel in Cottonwood, Calif., June 6-9, 2009. He also confirmed that an armed robbery took place on June 8, 2009, at the home of a neighbor of Rena Caudle, the biological mother of Shawna Forde. “It was a home invasion where two individuals broke into the house and eventually stole $12,000,” said Navarro.

Navarro testified that one of the suspects had a U.S. Marshal Service badge and the victims later identified that suspect as Bush. Also, a badge for the U.S. Marshal Service was taken into evidence among the property found in the possession of Bush.

Navarro also confirmed there was a burglary at the home of Meryl Metzger, Forde’s half-brother, where a safe was stolen. Navarro testified there was evidence that Forde and Bush had asked to borrow a crowbar from the staff at the Alamo Hotel for the purpose of opening a safe.

Navarro learned that during an April 2009 visit to Caudle in Redding, Calif., the neighbor who was later robbed was visiting and in Forde’s presence mentioned a recent inheritance that she intended to keep at home. The day after the Arivaca murders Forde contacted Caudle for the address of her neighbor, who was robbed soon thereafter.

On cross-examination, Navarro testified that no arrest warrants had been issued for the arrests of either Bush or Forde in connection with those incidents.

Washington cold cases

Navarro was also asked to testify about a pair of homicides that may have been committed by Bush in 1997 in the Wenatchee, Wash. area.

The alleged murders committed on July 24, 1997 and Sept. 21, 1997, were the subject of litigation during the Bush trial. A motion by defense counsel stated that the murders of Hector Lopez and Jon Bumstead “will simply turn this case into the trial of a serial killer who has never had the opportunity to defend against allegations arising from murders which occurred 14 years ago. To do so would be breathtakingly prejudicial and distracting to the jury.”

According to reports from Washington, on July 24, 1997, Hector Lopez Partida, a transient, is found stabbed in a parking lot on South Wenatchee Avenue. He died later at Central Washington Hospital. No suspects were found, but police found a discarded shirt within 100 yards of where Lopez was attacked. Blood on the shirt reportedly belonged to Lopez.

On Sept. 21, 1997, the body of Jon Bumstead, 19, of East Wenatchee, was found in a remote area of Douglas County near Palisades. Bumstead had been shot twice with a rifle and killed. No arrests were made.

In January 2009, a state lab in Washington found DNA belonging to Bush on the discarded shirt found near the Lopez murder.

On June 12, 2009, Bush was charged in Chelan County Superior Court with second-degree murder in the death of Lopez. Also in June of 2009, a confidential informant, working with Wenatchee police on the Lopez murder, told law enforcement officers that Bush, who had been friends with Bumstead, had killed Bumstead. Later in June 2009, Bush, in an interview with Wenatchee Police Sgt. John Kruse, denied killing Lopez or Bumstead.

On July 31, 2009, Bush was charged in Douglas County Superior Court with first-degree murder in connection with the Bumstead murder. Bond was set at $1 million. While a request for extradition was made, there was been no execution of a governor’s warrant that would allow for Bush to be transferred to Douglas County Superior Court to stand trial.

Gaxiola’s role

Navarro also testified regarding his interview with Bush in Kingman shortly after his arrest. During that interview, Bush told Navarro that it was Gaxiola’s orders that forced him inside the Flores home where he shot and killed Junior Flores and his daughter, Brisenia, using a .45 cal. automatic supplied by Gaxiola. Bush also told Navarro that after he had been shot in the exchange of gunfire with Gonzalez that Gaxiola had been the one who took a final shot through the front door with what appeared to be a shotgun.