Police believe 22-year-old Marino Leyba Jr. intentionally killed his unborn son two weeks ago by shooting his nine-month pregnant girlfriend in the belly, detectives said Wednesday.

However, Santa Fe District Attorney Angela "Spence" Pacheco said Wednesday that the Santa Fe man can't be charged with murder in connection with the unborn boy's death because a fetus isn't considered a human being under New Mexico homicide laws.

"If they had taken (the mother) to the hospital and delivered the baby and it had taken one breath, then died, it would be homicide," Pacheco said. "But if the baby is killed in the womb, it's not considered homicide under New Mexico law. It doesn't matter if the fetus was targeted."

Leyba shot Sarah Lovato, 17, three times in the belly and upper torso May 22 after barging into the apartment she shared with her father and younger sister in the 4500 block of Paseo del Sol, Santa Fe police Capt. Gary Johnson and Detective Tony Trujillo said. Leyba also killed the girl's father, Bennie Lovato Sr., 50, by shooting him three times in the upper torso, Trujillo said.

"Based on the evidence we got from the pathologist, it's our belief that the baby was also a target," Johnson said. He said there was never a question of whether police or paramedics who responded to the scene would be able to save the baby, who was to be named Isaac Ray Lovato, according to an obituary notice.

"This is probably, for me, the worst case of domestic violence I've ever seen," Johnson said. Trujillo agreed, saying the alleged targeting of the unborn boy made it the worst he had investigated.

"Just when you think you've seen it all — how cold people can be — it gets worse," Trujillo said, adding that Sarah Lovato could have been ready to give birth within days.

Both men have been police officers for nearly 20 years.

Leyba initially was charged with three counts of murder. However, Pacheco said the counts will be reduced to two murder charges. Prosecutors are still reviewing the evidence to determine what charge might be appropriate in connection with the death of the fetus, she said.

Police believe the killings may have stemmed from the fact that Sarah Lovato had ended her two-year relationship with Leyba two or three weeks earlier, Trujillo said. Family members and neighbors have said the relationship was fraught with domestic violence, though police were never called and Leyba was never arrested in connection with such allegations, he said.

Trujillo said Leyba, who worked a graveyard shift as a security guard, also may have stalked Sarah Lovato and suspected she was seeing another man, which the detective said is a textbook accusation in a domestic violence case. Family members have told police Sarah Lovato wasn't seeing anyone else, he said.

The immediate chain of events that led to the May 22 shooting began with a phone call from Leyba to Sarah Lovato about 9:30 p.m., Trujillo said. Sarah Lovato's sister, who is 16, said the couple argued about something during that conversation, though she didn't know what, he said. All she heard her sister say to Leyba before she hung up was, "I'll have to think about that," Trujillo said.

About 45 minutes later, the sisters were in the apartment's back bedroom, which had been converted into a nursery, while their father was in the living room connecting cables to a television, he said. The girls heard their father say, "You can't just walk in here like that. You have respect for my home. This is my home," according to Trujillo.

When the sisters walked out of the bedroom, they saw Leyba near the front door, the detective said. Leyba began yelling at Sarah Lovato, saying, "What the (expletive) are you going to do about it?" Trujillo said. The sister thought the comment had to do with the recent phone conversation. Because of Leyba's previous violent tendencies, the sister hurried out of the residence toward her brother's apartment in an adjacent building, Trujillo said.

As the sister was running down the stairs, she heard Sarah Lovato say, "No, Reno, please," followed by a single gunshot, he said. After she arrived at her brother's apartment, she heard about five more shots. Her brother armed himself with a baseball bat and went to the apartment alone, where he found the two bodies, Trujillo said. Both apparently were dead already, he said.

Investigators believe Bennie Lovato Sr. was shot first, followed by the shot that killed the fetus, then the additional shots into Sarah Lovato, Trujillo said. Police recovered 10 bullet casings from the apartment, according to a search warrant. The gun hasn't been found, Trujillo said.

Leyba, who worked for his father's company, USA Security, was wearing his guard uniform at the time of the killings, and apparently shot the Lovatos with the 9 mm handgun he carried on the job, police said. Investigators are still trying to determine if Leyba had a valid permit to carry the gun, Trujillo said.

Police found the Mercury Mountaineer sport-utility vehicle that Leyba drove after the shootings parked in front of a residence off Bishops Lodge Road. Police are investigating whether anyone connected with that residence knew Leyba, he said.

Leyba turned himself in to Los Alamos police at about 8 p.m. the following day. Police are trying to determine how he got to Los Alamos, as well as what connection Leyba might have to Los Alamos, Trujillo said.

Leyba, who is being held in lieu of a $5 million cash-only bond, has refused to speak to police and asked for a lawyer, Johnson said. His attorney, public defender Joseph Campbell, did not return a message Wednesday seeking comment.

Friends and family have told police that Sarah Lovato, who attended Capital High School, was excited about becoming a mother, Trujillo said. Her MySpace page was titled "Mommy to be," though by Wednesday that had been changed to "RIP mommy to be." The day she was killed, Lovato had posted an ultrasound picture of her unborn child.

Burials were held Tuesday in Santa Fe for Bennie Lovato, Sarah Lovato and Isaac Lovato.

Contact Jason Auslander at 986-3076 or :jauslander@sfnewmexican.com.