A personal injury case must be tried, even if the testimony of a single witness equates the victim impact statement with their own assumptions


By Natalia Claburn

SACRAMENTO, CA – Marcelino Hernandeznewborn was present in custody during his preliminary hearing here in Sacramento County Superior Court on Thursday, where he was charged with bodily harm to his wife.

Although the judge ultimately instituted a trial in the case, the testimony of a police officer confused what the victim had said and what she had said.

It was alleged that on April 19, at around 8:30 a.m., Deputy Sarah Kisch – the only witness in this hearing – was sent to the residence of Hernandeznewborn and his wife. The alleged victim was waiting outside with the five children she shares with the accused when Kisch arrived.

During examination-in-chief with Assistant District Attorney Kitty Tetrault, MP Kisch explained that she met and spoke to the victim at the crime scene where the victim said she had just been physically assaulted by her husband.

Earlier in the morning, the victim said she was awakened by the accused “pulling her out of bed by her hair and shirt”, causing her to land on the floor where he then hit her with ” slaps with open hands, closed punches, and knee hit him in the face.

Hernandeznewborn asked the victim to stand up, which she did. In an attempt to protect himself, the victim attempted to curl up on their bed, but Hernandeznewborn reportedly continued the abuse as he “got on top of her, sat on her chest and immobilized her with it. her knees “so that she could not move as he hit her several times.

The victim told the deputy that, while the accused was sitting on her chest, she tried to bring him down saying “she couldn’t breathe, but he didn’t stop”.

Throughout the assault, Deputy Kisch said, the victim said she heard her husband say things “about the death of her father” on several occasions.

In her statement, the victim told Kisch that she did not know of any specific reason why her husband would discuss her father’s death while assaulting him.

Hernandeznewborn then allegedly stood over the victim on the bed and continued to assault him, stomping on his shins and, at one point, the back of his head. After an undetermined amount of time, the victim said, the accused walked away from the victim and told her to lie with him, and she complied.

After the defendant fell asleep, the victim left the house with her five children who were present in the house at the time of the assault.

When Kisch met the victim outside, the victim refused immediate medical treatment, saying “she wanted to go to hospital on her own”.

Deputy Kisch clarified that she did not receive a body camera at the time, which is why there was no recording in the evidence for this case, although Kisch’s patrol car was a camera.

It was at this point in the courtroom that Kisch started to speak faster, apparently feeling flustered.

During cross-examination of Deputy Public Defender Damien Jovel, Jovel asked Kisch if the victim had an explanation as to why her five children had heard nothing during the assault.

Kisch said the victim said “this [physical assault] had happened before. However, when Jovel asked why this quote was not in Kisch’s report, Kisch then said that the victim’s “body language” indicated that this incident was not the first time she had been abused.

Jovel continued to support Kisch on his hypothesis by asking him more about how the children heard nothing during the incident, despite their small living situation for seven people, to which Kisch responded by saying that the victim had “Stating that she was getting beaten was pretty normal so she kept quiet.

After some debate where Kisch was explicitly asked if the victim said these things, Kisch clarified that the victim explicitly said “[the kids] would not have heard me ”, but did not explicitly say that she had already been assaulted by her husband.

The repeated use of the word “indicated” caused some confusion on behalf of Legal Counsel and Judge Shelleyanne Chang.

As there was no citation in the victim impact statement about the incident or any previous assaults, it was not clear whether the victim had explicitly stated that she had been abused before or whether Kisch had observed his behavior and formulated an educated hypothesis.

PD Jovel then asked Kisch sarcastically, “Do you read minds?” referring to the fact that Kisch confused his hypothesis based on victim behavior with the actual victim impact statement.

But, Jovel quickly thought better and said, “I withdraw that,” apparently acknowledging that his rhetorical question needlessly dismissed Kisch’s mistake.

At the end of Kisch’s cross-examination, Jovel asked if the shirt the victim wore during the assault that had been torn had been entered into evidence. Kisch said it wasn’t because the apartment where the crime happened had not been searched after Hernandeznewborn’s arrest.

Due to confusion around Kisch’s interview with the victim, Tetrault reminded Judge Chang that Hernandeznewborn had several previous domestic violence offenses and convictions, when Jovel asked if the judge would allow the accused to be released under bail.

In 2018, Hernandeznewborn “was given a year for the crime of domestic violence and before that he had a … misdemeanor in 2017”. In 2019, the accused “was sentenced to two years in state prison for breach of probation in a domestic violence case in which he was convicted.”

And finally, on March 11, 2021, “the accused was convicted of a previous domestic violence against this same victim” which resulted in 173 days of probation which he broke because of this incident.

While still ambiguous, with what was said in the victim’s interview with Kisch, previous convictions made it clear that the victim had indeed been injured by Hernandeznewborn in the past.

DDA Tetrault argued that “the only way to protect the victim in this case and the community as a result is for this case to go without bond. There is no surety that would ensure his safety.

Judge Chang appeared to agree with Tetrault’s request not to maintain a bond, saying there were sufficient grounds to believe that the accused was guilty and that “it appears to be, frankly, a habit of the accused ”.

Hernandeznewborn pleaded not guilty and held a pre-trial conference on October 7 to prepare for a jury trial on October 12.


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