Separate Trials Sought for Couple in Slaying

The “battered woman” defense could prove to be a legal minefield if Gabriela and Rogelio Hernandez go on trial together in the slaying of their 2-year-old daughter, lawyers argued Monday.

But Superior Court Judge James P. Cloninger said he plans to rule this morning on a request from Rogelio Hernandez to avoid that risk by splitting the case into two trials so that Gabriela Hernandez’s defense will not seriously hamper his own.

“This case appears to meet all the tests for a joint trial,” Cloninger said. “But obviously that trial can’t occur at the expense of Mr. Hernandez’s right to confront and cross-examine witnesses who will testify against him.”

The Oxnard couple were charged with murder by torture and multiple counts of child abuse after Joselin Hernandez died last year of blunt-force injuries to her stomach.

Attorneys waged a complex legal argument Monday on how jurors will hear testimony about Gabriela Hernandez’s insistence that her husband beat both her and their daughter.

The legal argument pits the husband’s right to a fair trial against the wife’s theory that she is not guilty of murder because his physical abuse prevented her from stopping him from killing their daughter.

Deputy Dist. Atty. Dee Corona argued that psychologists should not be allowed to tell the jury about Gabriela Hernandez’s descriptions of abuse by her husband because that would be improper, third-hand “hearsay” evidence.

Instead, Corona argued, Gabriela Hernandez should be required to present other eyewitnesses to testify about her husband’s abuse--or to take the stand herself.

“The people’s motion to suppress the battered-women expert’s testimony is a request for the court to determine the relevance of that testimony,” Corona said.

Gabriela’s attorney, William C. Maxwell, argued that forcing her to testify would violate her constitutional rights against self-incrimination.

If she were forced to testify about her husband’s abuse, the prosecution could use that evidence to tell the jury that she had violated the law by failing to stop Rogelio from killing their daughter, Maxwell said.

What’s more, Maxwell said, women who testify using the battered-woman defense make poor witnesses because they are often reluctant to testify, “they have poor memory problems and . . . they are not good reporters of fact.”

Hernandez also suffered sexual abuse as a child--evidence that could only be presented through the psychologists to help the battered-woman defense, Maxwell said.

“How in the world are we going to get some relatives to come up here from Mexico to testify that 13, 14, 15 years ago, they molested her?” Maxwell asked. “That’s not going to happen.

“The question is not what happened to Gabriela Hernandez in the past,” he added. “The question is, what accounts for the way Gabriela Hernandez is?”

Attorney Douglas Daily argued that all of Gabriela’s battered-woman evidence would make his client look bad.

“I can see a cavalcade of evidence . . . portraying Rogelio as this monster,” Daily said, asking the judge to split the cases into two trials. “Her evidence should have nothing to do with the prosecution’s evidence against him.”

But Corona argued that two trials would be a hardship for prosecutors.

She suggested picking two juries--one for each defendant in a joint trial--but Cloninger rejected the idea as unwieldy, saying it might lead to logistics snarls and inconsistent verdicts.

The hearing is to continue today.