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Woman to Be Retried in Death of Daughter, 2

Court: Gabriela Hernandez's murder conviction was reversed because testimony on battered women's syndrome was barred.


Ventura County prosecutors have decided to retry an Oxnard mother for murder after her prior conviction for the 1996 beating death of her 2-year-old daughter was overturned on appeal.

An appellate court last week found the judge who presided over 22-year-old Gabriela Hernandez's trial erred when he barred testimony from experts who concluded she was suffering from battered women's syndrome.

That condition, the court found, could explain why Hernandez failed to stop her husband, Rogelio, from pummeling their toddler, Joselin, to death.

Prosecutors are not fighting the ruling.

But they will retry Gabriela Hernandez for murder and felony assault--firm in their belief that she is responsible for Joselin's death for standing by and doing nothing to stop the abuse.

"We are going to go forward," said Senior Deputy Dist. Atty. Richard Holmes. "We felt the jury reached the proper verdict and we intend to ask a second jury to reach the same verdict."

Gabriela and Rogelio Hernandez were found guilty of murder in January 1998 after a six-week trial in which prosecutors presented a staggering history of brutality against Joselin, who died June 22, 1996, of blunt force injuries possibly caused by someone kicking or punching her in the stomach.

The case sparked controversy because social workers were supposed to be monitoring the child's welfare following a 1994 incident in which a 6-week-old Joselin was hospitalized for fractured ribs, burns and broken legs.

Medical experts who testified at the couple's trial determined someone had twisted the infant's legs until they snapped. At the time of her death, an autopsy revealed bruises and burns in various healing stages.

At the close of the 1998 trial, defense attorneys argued that the parents were young, ignorant and reliant on nontraditional forms of medicine that contributed to Joselin's health problems.

But prosecutors argued that Rogelio Hernandez intentionally abused the child--burning and beating her--while Gabriela did nothing to stop him.

The jury found him guilty of first-degree murder, torture and multiple counts of child abuse. The jury returned a second-degree murder verdict against her, as well as convictions for fatal assault of a child and child abuse.

In the Aug. 14 decision, justices for the 2nd District Court of Appeal in Ventura affirmed the convictions of Rogelio Hernandez, who is serving 42 years to life in prison.

The court affirmed five counts of child abuse against Gabriela Hernandez, but overturned the murder and fatal assault convictions.

In the coming weeks, the mother will be transported from prison to County Jail, and lawyers expect her second trial will get underway in a few months.

Ventura attorney James Farley, whose firm represented Hernandez two years ago, will likely handle the retrial.

Farley said he was not surprised prosecutors decided to pursue the case a second time. "They have the right to do it," he said. "Whether I approve or not doesn't make a difference."

Farley said the second jury will hear expert testimony about battered women's syndrome and evidence of how Gabriela Hernandez, married at age 16, suffered abuse at the hands of her husband.

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