Corporal Injury Case Set for Trial, Even Though Testimony of Only Witness Equates Victim Statement with Own Assumptions

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By Natalia Claburn

SACRAMENTO, CA – Marcelino Hernandeznewborn was present in custody at his preliminary hearing here in Sacramento County Superior Court Thursday where he was being charged with corporal injury to his spouse.

Even though the judge would ultimately set trial in the matter, officer witness testimony led to confusion on what was said by the victim versus what the victim indicated.

It was alleged that on April 19, 2 at around 8:30 a.m., Deputy Sarah Kisch—the sole witness for this hearing—was dispatched to the residence of Hernandeznewborn and his wife. The alleged victim was waiting outside with the five kids she shares with the defendant when Kisch arrived.

During Deputy District Attorney Kitty Tetrault’s direct examination, Deputy Kisch explained that she met and talked to the victim at the crime scene where the victim stated that she had just been physically assaulted by her husband.

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

Hernandeznewborn proceeded to tell the victim to stand up, which she did. In an attempt to protect herself, the victim tried to curl into a ball on their bed, but Hernandeznewborn allegedly continued the abuse as he “got on top of her, sat on her chest, and pinned her down with his knees” so she couldn’t move as he hit her multiple times.

The victim told the deputy that, while the defendant was sitting on her chest, she tried to get him off, saying that “she couldn’t breathe, but he did not stop.”

Throughout the assault, Deputy Kisch stated, the victim said she heard her husband repeatedly saying things “about his father’s death.”

In her statement, the victim told Kisch that she did not know any particular reason why her husband would be discussing his father’s passing while assaulting her.

Hernandeznewborn then allegedly stood over the victim on the bed and continued to assault her, stomping on her shins and, at one point, the back of her head. After an unspecified amount of time, the victim said, the defendant got off of the victim and told her to lie with him, and she complied.

Once the defendant had fallen asleep, the victim left the house with her five children who had been present in the house at the time of the assault.

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

Deputy Kisch clarified that she had not been issued a body camera at that point, which is why there was no recording in the evidence for this case, though Kisch’s patrol car did have a camera.

It was at this point in the courtroom that Kisch started speaking faster, seemingly feeling flustered.

In Assistant Public Defender Damien Jovel’s cross-examination, Jovel asked Kisch if the victim had an explanation for why her five children had not heard anything during the assault.

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

Jovel continued to press Kisch on her assumption by asking more about how the kids did not hear anything during the incident, despite their small living situation for seven people—to which Kisch responded by saying that the victim had “indicated that her getting beat was quite normal so she kept quiet.”

After quite some debate where Kisch was explicitly asked if the victim had said these things, Kisch clarified that the victim had explicitly said “[the kids] wouldn’t have heard me” but had not explicitly said that she had experienced assault from her husband before.

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

Since there were no quotes in the victim’s statement about the incident or any possible previous assaults, it was unclear as to whether the victim explicitly stated that she had been abused before or if Kisch had observed her behavior and made an educated assumption.

PD Jovel then sarcastically asked Kisch, “Do you read minds?” referring to the fact that Kisch had confused her assumption based on the victim’s behavior with the victim’s actual statement.

But, Jovel quickly thought better and said, “I withdraw that,” seemingly acknowledging that his rhetorical question was unnecessarily dismissive of Kisch’s mistake.

As the cross-examination of Kisch came to a close, Jovel asked if the shirt that the victim had been wearing in the assault that had been ripped was entered into evidence. Kisch said it was not because the apartment where the crime occurred was not searched after Hernandeznewborn’s arrest.

Due to the confusion around Kisch’s interview with the victim, Tetrault reminded Judge Chang that Hernandeznewborn has multiple prior offenses and convictions related to domestic violence, when Jovel asked if the judge would allow the defendant to get out on bail.

In 2018, Hernandeznewborn “received a year for felony domestic violence and before that he has a…misdemeanor in 2017.” In 2019, the defendant “was sentenced to two years state prison for violating probation on a domestic violence case in which he was convicted.”

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

While still ambiguous, with what was said in the victim’s interview with Kisch, the prior convictions clarified that the victim had indeed been harmed 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 that this case remains no bail. There is no amount of bail that would ensure her safety.”

Judge Chang seemed to agree with Tetrault’s request to sustain no bail, saying that there was sufficient cause to believe that the defendant is guilty and that “it appears that this is, frankly, a habit of the defendant.”

Hernandeznewborn entered a not guilty plea and has a trial readiness conference on Oct. 7 to prepare for a jury trial Oct. 12.

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