Sacto 9-1-1

From Andy Furillo:

A dad whose distractions led to a drowned baby got out of jail Tuesday after a jury voted 11-1 to acquit him of criminal child neglect charges.

Hector Lozano, 26, had been behind bars for more than seven months for the Feb. 9 death of his 10-month-old son, Benjamin. After declaring a mistrial Monday, Sacramento Superior Court Judge Gary S. Mullen ordered Lozano released on his own recognizance and set a retrial hearing for Oct. 16.

A North Sacramento apartment manager, Lozano had put the infant and his older son, Hector Jr., 3 1/2 at the time, into the bathtub after they had dumped food all over themselves and onto their living room carpet.

While Lozano was cleaning up the mess, an irate tenant knocked on the door to complain about a roof that was collapsing in his apartment. Lozano took about a half-hour to deal with the problem, then returned to the bathtub to find Benjamin face up in the water and unresponsive.

His public defender, Amanda Benson, said the jury's 11-1 vote in her client's favor after two days of deliberations ought to tell the district attorney's office that a retrial would be "a waste of time."

"This was a mistake that any parent could make," Benson said in an interview. "It was not a flagrant or reckless act on his part. It was a temporary lapse of judgment that resulted in a tragic accident, and it didn't rise to the level of criminal negligence."

District attorney's spokeswoman Shelly Orio said prosecutors are evaluating the case to determine whether to retry Lozano on the single count of child neglect resulting in great bodily harm or death.

"This case was tried with the belief that there was evidence beyond a reasonable doubt," Orio said in an e-mail. "Unfortunately, some of the jurors disagreed."

One juror interviewed Tuesday attributed the baby's death to the "cascade of life" and its attendant details that befell Lozano on the day of the disaster.

"This was a father who was trying to take care of his children," said the juror, Sylvia Fox, a journalism professor at California State University, Sacramento. "I didn't see that he didn't care.

"I think all of us could imagine getting diverted, and that panic of 'Oh my God,' and you realize that your kids are unattended," Fox said.

While Lozano awaits prosecutors' decision on a retrial, Benson said she will try to reunite him with his wife and his 4-year-old son whom the lawyer said has since been taken away by the county's Child Protective Services agency.

"He's going to be trying to get his family back together, get a job, get a home," Benson said.

Court papers filed by prosecutors said Lozano has past convictions for drunken driving, giving a false name to police and misdemeanor spousal abuse.

Benson called the spousal abuse case "minor" and said that it "didn't involve the kids at all."

According to a timeline established by Deputy District Attorney Kerry Blackburn, Lozano left the kids in the bathtub for about a half hour on the day of the death before he returned to find the baby lying in the water.

At that point, "Benjamin's gone," Blackburn told the jury in her closing argument. "He's gone, just because he wasn't being watched."

Lozano told police who interviewed him afterwards that he "panicked" when he found Benjamin without breath or a heartbeat. He called 911 at 2:53 p.m. and administered CPR to Benjamin, but could not revive the child.

"I said, 'God, he's not breathing, no heartbeat, nothing,'" Lozano told police, according to a transcript of the interview.

In her closing argument, Blackburn said "a reasonable person knows" to not leave a baby unattended in a bathtub. She suggested that Lozano laid the groundwork for the fatality earlier in the afternoon by playing video games at the same time he was supposed to be watching the kids while his wife was out running errands.

"Benjamin is not the priority that day," Blackburn said.

Lozano's lawyer countered that the case was a matter of "simple neglect" and "a human mistake."

"Distractions happen to all of us," Benson argued.

UC Davis law professor Vikram Amar said he was "not shocked" by the hung jury and that the 11-1 vote for acquittal signaled that "it's pretty unlikely you're ever going to get 12 out of 12 to convict."

Still, Amar said, the trial, even with its lack of a verdict, may already have achieved the system's goal of establishing the effect of deterrence.

"It reminded all of us we've got to watch our kids," Amar said.