Lawyer Asks Judge to Drop Murder Charge

Should Gabriela Hernandez face the same murder charge as husband Rogelio Hernandez in the abuse death of their 2-year-old daughter?

Attorneys argued the question Friday, and a judge said he would weigh their statements before deciding whether to drop murder charges against Gabriela Hernandez.

The Oxnard mother has said in interviews that she was a battered woman unable to stop her husband from regularly beating their daughter, Joselin.

Defense attorney William Maxwell argued that Gabriela Hernandez showed no malice--one key to a guilty verdict on a murder charge.

“My client didn’t know her child was going to die,” Maxwell argued before Superior Court Judge James Cloninger. “She knew the child was being abused, but she kept getting the child fixed” by taking her to doctors and folk healers.

“She should have known better, but out of all that, where do you get a ‘malicious and willful and wanton regard for human life?’ ” Maxwell said, referring to requirements in California’s law on murder. Hernandez is more likely guilty of manslaughter, he said.

But Deputy Dist. Atty. Dee Corona argued that Gabriela Hernandez failed to protect her child despite the injuries the girl was obviously suffering at Rogelio Hernandez’s hands.

“She knew what happened,” Corona said. “Broken ribs, broken ankles, burns, cuts, scratches. As soon as the child is returned to the couple [by authorities], this child suffers an extremely serious burn to her right hand.”

Gabriela Hernandez also shielded the girl’s injuries from the eyes of authorities, “and all of this connotes guilt and participation,” Corona said. Joselin Hernandez eventually died of blunt-force injuries to her stomach in 1996, which prosecutors say were caused by both parents.

Cloninger likened the situation to leaving a child in the house with a wild animal, knowing that it has attacked her in the past.

“It wouldn’t be unreasonable to charge Gabriela Hernandez with the knowledge that, one of these days, Joselin Hernandez might not be able to bounce back,” he said.

But Cloninger said he must first weigh the arguments, and he gave no indication of when he will issue a ruling.