A site to combat the ever growing hysteria over pedophilia
"All that is necessary for the triumph of evil is that good men do nothing." Edmund Burke
It should be noted that the following so called victims, who where twelve years of age at the time of the events, are now adults, so it is permissible to publish their names. Of the six girls whom charges of CPC 647.6 child annoyance and molestation were filed in behalf of, three resulted in convictions. Four additional charges of battery all resulted in acquittals.
Appeal Statement of Facts
General Background.
During 1996-1997, Defendant was a first-year, forty-seven year-old art and homeroom teacher at Olive Vista Middle School, in Sylmar, California. (RT 6:35). Defendant had trouble controlling his often chaotic classes which contained many "special ed." type students, who would often constantly talk and not remain in their seats. Defendant employed a teaching style that included a friendly, relaxed demeanor and frequent jokes. (RT 2:107, 4:10, 51.)
His troublesome students would oftentimes tease him about his thick glasses and paunch, that eventually evolved into calling him names with sexual overtones, such as: gay, pervert, and dick pants (because Defendant occasional wore "Dickies" brand name pants to class. (RT 1:25, 38, 2:32, 58, 64, 107, 3:34, 6:56.)
In order to maintain classroom control Defendant offered students rewards for their good behavior, such as candy, stickers, and pencils. (RT 2:31, 63, 6:40, 3:39, 3:51, 6:98.) In order to foster a nurturing environment, Defendant would occasionally pat a student on the head (approximately six occasions) and once told a troubled female student that she looked attractive. (RT 1:19, 40, 6:54, 7:12.)
In February, 1997 another teacher at Olive Vista was contacted by some of Defendant’s female students who complained that Defendant has sexually harassed them. (RT 4:46) That teacher passed word along to a school administrator, who then met with Defendant and discussed the allegations. The meeting included Defendant’s receipt of students’ written statements. (RT Defense Exhibit A 2:5, 18, 79.) Defendant denied all claims in his written response that he prepared for the meeting with the school administrator; absolutely none of the allegations did in fact ever occur. Defendant was told by the school administrator that the girls' parents should be contacted due to their lying.
As to allegations that Defendant engaged students in sexual conversation, Defendant attributed this to students’ persistent coaxing of him to talk about sex. Defendant considered this to be typical pre-teen sexuality which did not sexually excite him, but instead bored him and made him nervous. (RT 6:50-51, 72, 85.) Defendant, on several occasions, requested of his female students that they not speak to him about sex, but some would always continue seeming to greatly enjoy it.
Defendant’s supposed proclivity for attraction to young girls was evidenced by a web site that he maintained for the world renowned gymnast Dominique Moceanu, that had a head-to-waist picture of the famous gymnast on it. Defendant claims that the gymnast’s own mother called Defendant to tell Defendant when and where Defendant could photograph the Olympic Gold medalist, because Defendant has sent a letter of admiration to Dominique (Defendant can provide audio tape of the phone call to substantiate his claim). In addition, in 1988 - nearly ten years previous to the trial - further evidence of Defendant's supposed attraction to young girls was evidenced by a police detainment for an incident where Defendant was told to get out of a swimming pool for throwing two girls too high in the air. (RT 6:36, 40.)
In May, 1999 one of Defendant’s students was sent to the dean’s office for disciplinary reasons because the student had thrown a video box at him. While there, the female student -- Roxana Gonzalez --, mentioned Defendant’s involvement with another student, Maria Favela, in which the student moved over Defendant’s desk yelling “rape.” This spurred an investigation, and the bringing of charges, detailed here-in-below, followed by the Defense response to each. (RT 4:13.)
Roxana Gonzales, Counts, 1 (mistrial) & 2 (mistrial).
Sometime after school’s winter vacation in 1996, Ms. Gonzales was leaning on top of a table during her “advisory period,” commonly referred to as homeroom, when she felt a touch upon her rear-end. (RT 1:15, 29, 30, 35.). Ms. Gonzales turned around a saw Defendant right behind her and she cursed at him. (RT 1: 31) Defendant responded, “I’m sorry, it was an accident” to a doubting Ms. Gonzales. (RT 1:33, 2:14)
The Defense Case
Defendant testified that although he never touched Ms. Gonzales; he vaguely remembered that there was an occasion where Ms. Gonzalez was standing at the front counter with another girl standing in back of her who said laughingly “Don’t go touching her butt,” and Roxana said the same thing. (RT 6:49, 59, 60, 94.) Defendant thought he might have just denied it at first, but then said “excuse me” to just play along with what he perceived as a joke. He also remembered wondering if the girls were trying to "set him up" and that Roxana was a disciplinary problem, having referred her to school disciplinary authorities on six occasions. However, when initially responding to this allegation Defendant said that it was fabricated, but had his memory jogged while listening to police tapes. (RT 7:12-18.)
Roxana Gonzales is a manifest liar and there was not a word of truth to her allegations.
Maria Favela, Count 8 (Guilty PC 647.6)
In May, 1997, Ms. Favela asked Defendant for a dollar and then lowered the amount to a quarter. Ms. Favela alleges that Defendant requested a hug, to which she replied “no.” (RT 2:29, 32, 50.) Then, a friend of Maria’s jokingly asked Defendant if she could have the dollar in return for her phone number and Defendant agreed. Ms. Favela also asked Defendant if he would take her away for the weekend. (RT 62-64.)
Ms. Favela also claimed that Defendant asked her if she was free on the weekends. (RT 34.)
Later during the class period is was claimed that Defendant cornered Maria near his desk and to she called out “rape,” causing Defendant to back away. Maria escaped by jumping over the desk. Ms. Favela testified that she did not remember what she did after.
The Defense Case
Defendant presented testimony of Miguel Meza. He remembered Maria Favela jumping over the teacher’s desk and suggesting to Defendant that “if I give you my phone number, will you give me a dollar?,” to which Defendant said, “yes.” Maria gave him the phone number and Defendant gave her a dollar which they toyed with until the witness took the dollar and gave it to Maria. (RT 6:15, 17.)
Defendant’s version was that Maria and her friend persistently asked him for a dollar stating, “will you give Maria a dollar if she gives you her phone number?,” to which he joked and said “yes.” Maria held out the paper with the phone number on it and began playing “keep away” with it. While Favela held the paper near her waist, Defendant accidentally touched Favela at the waist while reaching for the paper. (RT 6:63-70, 7:29-30.) Defendant then played “keep-away” with the dollar by twice crumpling into his hand and upon the third presentation of the dollar Meza joined in, grabbing the dollar and handing it to Favela. Later, at no request of Defendant, Favela squeezed by Defendant placing herself in an area where she had never gone before and where students were not ordinarily allowed. Due to the previous playful activity and due to students’ not being allowed in the area, Defendant made a small gesture like he might scare or tickle Favela at which time she immediately scooted over Defendant’s desk yelling rape, while having a large grin on her face. (RT 6:71.)
Maria Favela did not so much lie about the events, but led the court to believe that she was somehow being annoyed by the defendant when it was she who was precipitating the events, actively participating, and purposfully enticing the defendant to engage in horseplay with her that had an air of sexuality. In this case, it is more the court's fault for viewing such obvious "horse play" that could occur almost anywhere to somehow be a crime.
Karina Bernal, Counts 3 (Guilty PC 647.6) and 4 (acquittal), Irene Hernandez, Counts 5 (mistrial) and 6 (acquittal), and Christina Pesina, Count 7 (Guilty PC 647.6).
On May 7, 1997, during their art class, Karina Bernal, Christina Pesina, and Irene Hernandez were talking about “a little about nasty (sex) stuff” in the classroom, and an upcoming party, while a movie was being played. (RT 3:80, 2:97, 110, 113, 110, 116.) Defendant joined the conversation and was asked if he had sex and he said, “No, my mommy wouldn’t let me do it”. He also said that he would “stick his dick in his girlfriend,” and that he had sex underwater. (RT 2:119, 127, 135, 3:80, 5:32, 5:32, 5:47-48). Defendant named his girlfriend as “Heather Locklear” and said he’d kept track of having sex with her by marking a blackboard at home. (RT 3:81
Both Karina and Christina knew that Defendant was joking. RT 2:127, 3:95.)
Next, Irene and Karina said Defendant would touch them for a dollar which Defendant gave, before he touched them. (RT 2:100, 112, 120, 5:36, 50). Karina was touched near her knee with the back of a hand, making her angry, and Irene was briefly tapped above her knee (RT 2:125, 129, 3:83, 96, 5:46). Christina was not touched, but held up Karina's shorts so other students wouldn’t see. (RT 3:86, 5:36.) At period’s end, Karina and Irene returned dollars to Defendant. (RT 5:50-51).
Irene was unsure who had touched her because Karina immediately told her that it was really Christina or Karina herself who had touched Irene’s knee. (RT 2:124, 5:43). The next day Irene overheard Karina say that Defendant had done it. (RT 5:36)
The Defense Case.
For weeks girls in Defendant's class had been asking of him to show them a picture of his girlfriend. As a joke Defendant tore a picture of Heather Locklear out of a magazine in preparation for when he would be asked again. On the day in question Karina Bernal asked Defendant if he would show her a picture of his girlfriend (Christina Pesina and Irene Hernandez were nearby) Defendant showed the picture, at which time Karina Bernal said, “Wouldn’t you like to get her in bed and have sex with her?,” which was quickly followed by Irene Hernandez coming up behind Defendant and saying, “Wouldn’t you like to get her in bed and stick you dick into her?” Hernandez then grabbed the picture from Defendant and left. Karina Bernal then asked Defendant if he would take her to her fifteenth birthday party (a party that was still three years away). Defendant jokingly agreed. Bernal and Pesina then proceeded to say that Defendant needed a girlfriend and that he looked better without his glasses. The girls then left.
Later, Irene came back and talked about personal things with Defendant such as her having herpes, and some talk about her sexual relations with her boyfriend. She also asked Defendant if he thought her legs were pretty and if he would give her a dollar. Defendant was concerned about deep scratches on Hernandez’s legs, then joking said the he would give Hernandez the money in exchange for allowing him to touch her leg. Hernandez was amused and Defendant gave the dollar without touching Hernandez. After talking a little more Hernandez requested another dollar and when Defendant said “I’ve already given you a dollar,” Hernandez grabbed Defendant’s hand and placed it on her knee. Defendant then gave Hernandez a friendly pat.
Karina saw this, and made the same offer, so Defendant tapped her on the knee with the back of his hand and gave her a dollar as well. (RT 6:80) Karina then offered Defendant to touch and look at her stomach for $5.00 and Defendant told Karina “no.”
Defendant admitted to saying, as a joke, “I’m not allowed to have sex because my mommy would spank me.” (RT 6:82.)
Karina Bernal lied when she claimed that the defendant said he would just like to get his girlfriend in bed and have sex with her. It was actually she herself who said this as a question: "Wouldn't you just like to get her in bed and have sex with her?" She lied when she said the defendant asked her if he could touch her leg. It was actually she who made the offer and made a further offer to allow defendant to touch her stomach for five-dollars, which Defendant refused to do . Bernal even went out bragging to other girls at the time that she was asking the Defendant to touch her leg for a dollar and got the dollar. This was clearly established on police tapes where Maria Favela stated as much and was why Favela later entered the room demanding a dollar too.
Irene Hernandez lied when she claimed she was sitting near the defendant's desk rather the on it. She lied when she accused defendant of telling her that his girlfriend bled after having sex. It was actually she who repeatedly asked: "Was she bleeding afterwards?" to which defendant never answered.
Christina Pesina did not lie in this case. She actually made the point very clear that defendant did not touch her or make any sexual advance toward her. The conviction for molesting her was just crazy and apparently just done in sympathy because she was there and witnessed the leg touching or something. This particular conviction is utterly baseless.
Denise Barron, Counts 9 (mistrial) and 10 (acquittal).
On an unknown date, Ms. Barron said Defendant was looking at her crotch and then touched her left side while she was sitting on a table near Defendant (3:42, 49.) Barron admitted that she did not see either incident, but that some girl just told her that Defendant had done these things. Barron also made other claims that Defendant said lewd things to her during the showing of the movie Showgirls. Barron admitted that if this had really happened then she would have stated so in her original letter, which she did not.
On another occasion, Barron alleged that she was on her way to the attendance office and stopped to talk to Defendant standing nearby. She asked Defendant for ten dollars which he gave and then Defendant said, “Don’t I get a hug for that?,” to which Barron answered, “No.”
Defendant’s Case
Defendant remembered Barron helping Defendant with grades, but denies Barron’s allegations that he was looking at her crotch or that he stroked her side. (RT 6:90) Defendant also denied that he ever showed the movie Showgirls and never had any involvement with Barren during the showing of any movie.
Regarding the latter, Defendant testified that he was supervising students at nutrition period when Barron came up to ask him for five dollars. (RT 6:58) He agreed, and after giving it to her said, “don’t I get a hug for that?,” to which Barron said, “no.” (RT 7:7.)
Appellant is indignant as to the convictions and proclaims that he did nothing that was in violation of P.C. 647.6: No act he did would have been "unhesitatingly annoying" to a normal person, and that no act he did could reasonably been construed to have been motivated by a true sexual interest for the child.
Denise Barron is just crazy or something. She accused the defendant of showing the movie "Showgirls" to the class, when all it was, was "Independence Day." (She even admitted during trial that her own parents did in fact show her the X rated movie "Show Girls," but naturally the police did not arrest them). She accused defendant of stroking her side once, while she sat on a table near him, even though another female student admitted at the time that she had done it. She, in fact, constantly sexually harassed the defendant by calling him "dick pants" because he one wore Dickies brand jeans to school. She also approached the defendant and told him that boys in the class where pointing to girl's pussies in a tape shown of Olympic gymnasts. She was foul mouthed and sexually harassing herself. Denise Barrons allegations were made solely because she was angry at defendant because he told her to stop visiting her after she insisted on entering his classroom bringing in other girls and calling him "dick pants." It was only after being told not to return that she wrote her letter of complaint.
Points and Authorities
The Evidence was Insufficient to Sustain Convictions under Penal Code section 647.6.
The objective of section 647.6, and its predecessor section 647a (renumbered, Stats.1986, ch. 1418, sec. 4.3), is as follows:
“When the words annoy or molest are used in reference to offenses against children, there is a connotation of abnormal sexual motivation on the part of the offender. Although no specific intent is prescribed as an element of this particular offense, a reading of the section as a whole in the light of the evident purpose of this and similar legislation enacted in this state indicates that the acts forbidden are those motivated by an unnatural or abnormal sexual interest or intent with respect to children. It should be noted further that the section must be construed reasonably as setting up an objective test for annoyance or molestation; a childish and wholly unreasonable subjective annoyance, arising, for example, from a child’s dislike for proper correction by a teacher, is not covered by the section. The annoyance or molestation which is forbidden is in no sense a purely subjective state on the part of the child.” (People v. Carskaddon (1957) 49 Cal.2d 423, 425; People v. Pallares (1952) 112 Cal.App.2d Supp. 895, 900; 2 Witken, Cal. Crimes section 620, p. 568.)
Examples of violative conduct include, People v. LaFontaine (1978) 79 Cal.App.3d 176, Defendant offering a 13-year-old victim money if he would permit the Defendant to perform a sexual act upon him; People v. Moore (1955) 137 Cal.App.2d 197, Defendant twice lifting an eight-year-old girl by the buttocks and with her legs wrapped around his hips rubbing against her; People v. McNair (1955) 130 Cal.App.2d 696, Defendant naked, exhibiting private parts to a seven-year old girl because he was ‘hot and he was going to masturbate;” People v. Thompson (1988) 206 Cal..App.3d 459, Defendant admitting to looking at victim’s legs, stalked girl who he didn’t know, made hand gestures, moved his mouth as if whispering and pursed his lips, causing the girl alarm; In re Sheridan (1964)230 Cal.App.2d 365, 372, Defendant’s contesting consecutive sentences for giving four girls a ride, but instead of taking them where requested, taking them to an isolated place in the hills, making references to victim’s youth in a suggestive fashion; People v. Kongs (1994) 30 Cal.App.4th 1741,1750, Defendant suggestively posing young models and taking crotch shots of them which he admitted were a “fetish” and gave him a thrill; People v. Carskaddon, supra, Defendant walking along a street and asks a stranger child lewd and obscene questions about whether she had unnatural acts performed upon her.
Conduct under section 647.6 that Defendant was convicted for violating was:
A. Maria Favela, in Count 8, offering her phone number for a dollar, which Defendant gave;
B. Karina Bernal, in Count 3, being touched around her knee with the back of a hand, making her mad; and
C. Christina Pesina, in Count 7, not touched, but holding up Karina’s shorts so other students wouldn’t see Karina touched around her knee.
The test, therefore, is the familiar rule of substantial evidence. (See, e.g. In re Man J. (1983) 149 Cal.Appp.3d 475, 482.) The question to be asked is whether, reviewing the light on the record most favorable to the judgment, there is substantial evidence (reasonable, credible, and of solid value) such that the trier of fact could find Defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307.)
The above-cited cases interpreting annoying and molesting are distinguishable examples where, the extent and degree of offender conduct, is greater than that occurring in the instant case.
Here, Defendant schoolteacher had a legitimate reason to be involved with these children, as opposed to a stranger with no legitimate purpose during his child contacts. Of course, a schoolteacher could violate the section, but Defendant’s actions, making potentially suggestive and lewd commits and misinterpreted touching, in light of the circumstances of a teacher-student relationship, must be viewed as faultless.
By discussing sex, playing silly games involving touching, and being physically comforting to these girls, Defendant’s reasonable explanations, that by his actions he was fostering a nurturing school environment and rewarding good behavior, as opposed to more traditional disciplinary measures, insulates his conduct. (RT 2:31, 63, 6:40, 3:39, 3:51,6:98.)
Defendant’s intentions were commendable and the trial court decision, if let stand, will serve to chill viable teaching tactics, in a hostile public school settings, here evidenced by chaotic student behavior like biting insults, name calling, and spiteful attitudes. (RT 1:48, 2:107, 6:38.)
In none of these incidents did either Defendant and his “victims” exhibit private parts, touch genitalia or clothing covering them, discuss engaging in sexual activity together, or create any sexual feeling.
Conclusion
The three counts for which Defendant was convicted should be reversed as not meeting the “substantial evidence” test.
Note: Appellate court did not overturn the above three convictions.
Φ
Denial (During subsequent civil suit)
Defendant denies that he committed any crime nor did he commit any tort against the alleged victims. Defendant states that the allegations against him were either entirely lies or gross exaggerations and that the convictions that he suffered were due to felony perjury by the female victims and incompetent appointed counsel.
Christina Pesina, whom a guilt verdict was secured during the criminal trial, did not participate in the civil suit. One must assume that she and her father did not agree with the convection, thus did not seek restitution.
As to Roxana Gonzales
Defendant emphatically denies the allegations made by Roxana Gonzales that Defendant touched her “rear-end” (butt). Gonzales’s claims were completely fabricated to pay Defendant back for sending her to the Dean’s Office. Gonzales was a special education student and out of control much of the time. She had been an “Opportunity Transfer” student from Mt. Gleason Middle School: that is, she was removed from Mt. Gleason School for exhibiting excessively unruly behavior and sent to another school to be able to receive a fresh start. That school, unfortunately for Defendant, was Olive Vista Middle School. She talked excessively, ran around the room, erased written material from the black board, chased students with a yard stick, called Defendant a “Fucking Asshole,” tore pages from Defendant’s class record book, and generally did whatever she could do to disrupt the class. Gonzales’s behavior was such that Defendant, on several occasions, had to have her leave the classroom and go to the Dean’s Office so that he could continue with his lessons.
Defendant believes that Gonzalez is deeply emotionally disturbed and does not know the difference between right and wrong, but only thinks that if someone does something she doesn’t like, then she has the justification to hurt that person by whatever means are at her disposal. Again, Defendant firmly denies Gonzalez’s allegations in their entirety.
As to Carolina Benavidez ~ This so called "victim" was not even part of the criminal trail, but decided to "cash in" during the subsequent civil trial.
Defendant completely denies the allegations of Carolina Benavidez and no criminal charges were filed on Benavidez’s behalf. Defendant remembers that Benavidez had written a letter accusing Defendant of the following: touching her face during a drawing class and later putting his arm on her shoulder when she came to visit him sometime during the following semester. Defendant herein states that he did nothing of the kind and that Benavidez’s allegations were and are completely fabricated.
Defendant never touched Benavidez during either occasion. During the drawing class Defendant was merely sitting on the front counter and pointing to various student’s eyebrows showing where the arch of the eyebrow is at it’s peak above the outside edge of the iris. Defendant pointed to several students including Benavidez. He never touched her and in fact remained seated on the counter top, never coming closer than four or five feet to Benavidez.
During the second incident Benavidez came into Defendant’s classroom at a time when he was alone. This was during the following semester. She apparently wanted to pay him a friendly visit. Defendant asked her if she liked her new classes and if she had missed him. She answered “yes” to both questions and then asked Defendant for either a quarter or a piece of candy, which Defendant gave her, after-which Benavidez thanked Defendant and left. Defendant believes that Benavidez was coaxed into making her allegations by Maria Favela (who was a friend of Benavidez) at some later time to add support to her own allegations. Again, Defendant firmly denies Benavidez’s allegations in their entirety.
As to Irene Hernandez and Karina Bernal
Defendant admits that there was an incident that occurred. However, Defendant denies that he broke any law or committed any tort and that all of the activities on the day in question were in fact initiated by the girls themselves, thus he could not have been annoying them. Defendant will try to be brief, but the incident was rather complex.
On the day in question, the events in question began when Karina Bernal and Christina Pesina (not involved in civil action) were talking near the Defendant’s desk before the beginning of class. Defendant wishing to be friendly may have gone to their vicinity and said, “How are you?” or something similar.
Before proceeding, Defendant needs to give some background information: For weeks several girls in his classes had been asking Defendant if he had a girlfriend. In order to be humorous Defendant tore a picture of Heather Locklear from a magazine and put it into his wallet in preparation for the next time he would be asked if he had a girlfriend. On this occasion Karina Bernal did in fact ask Defendant if he had a girlfriend. Defendant responded my taking out his wallet and showing the picture of Heather Locklear to both Karina Bernal and Christina Pesina. In response Karina Bernal said, “Wouldn’t you just like to get her into bed and have sex with her?” Irene Hernandez was not far away and upon hearing Bernal, came up to Defendant and snatched that picture from his hand while shouting, “Wouldn’t you just like to get her in bed and stick your dick into her?” Defendant was stunned and did not reply.
Hernandez left the area and the conversation continued between the Defendant, Bernal and Pesina. The two girls began telling Defendant that he needed a real girlfriend that that he would have a better chance of getting one if he didn’t wear glasses and that he looked better without them. Defendant said that he knew that and he was thinking about getting an operation to have his vision corrected. Bernal then playfully asked Defendant if he would take her to her fifteenth birthday party (which was still three years away). Defendant playfully said “sure” and Bernal said, “better not, my boyfriend might get mad.” This was followed by Defendant jokingly offering various amounts of money to take her to the party. Bernal eventually said, “Ok, where’s the money?” This was obviously joking and during the criminal trial Bernal herself admitted that she thought Defendant was joking. This was all that transpired during this period of the series of events.
Defendant returned to his desk and at some later time Irene Hernandez came back and sat on top of his desk. Here again Defendant must give some background information: Defendant considered Hernandez to be a friend, because she showed a genuine interest in him and his general happiness. Hernandez several times offered to arrange him a date with her older cousin. Hernandez also gave Defendant a small hug at the beginning of each class. Hernandez’s gestures of kindness and affection were meaningful to the Defendant and he grew to be quite fond of her. For Christmas, Hernandez asked the Defendant to purchase her a pair of green contact lenses so she could change the color of her eyes. Defendant, thinking that her eyes could be injured by contact lenses and felt it wrong that Hispanic girls should be ashamed of having brown eyes instead purchased for Hernandez an art kit. Because of this friendly relationship Defendant did not mind Irene sitting on his desk. It should also be mentioned that Hernandez was sexually active and enjoyed talking about sexual things. On several occasions Hernandez approached Defendant and asked him very provocative and personal sexual questions. Defendant several times asked Hernandez to stop asking him such questions, but she would always continue. Hernandez also admitted during the criminal trial that she had once read a “very nasty” note to the entire class. In essence, Hernandez had a quite amorous personality.
While Hernandez was sitting on Defendant’s desk she asked Defendant if he was going to return to Olive Vista to teach during the following year. Defendant said that he didn’t want to because of the terrible behavior of the students there. Hernandez was sad and asked Defendant to please return. There was then some conversation about Hernandez’s Herpes sores and if she was getting proper treatment for them.
Hernandez then seemed concerned with the prettiness of her legs and began asking Defendant, “Do you think my legs are pretty?” Defendant saw deep scratches on her left leg, above and to the outside of her knee. He said, “Those scratches look painful.” Hernandez ignored Defendant’s concern for the scratches and again asked Defendant, “Do you think my legs are pretty?” Defendant noted that above Hernandez’s knees there were several creases, somewhat like the creases one has on knuckles. Defendant thought that this may have been what was bothering Hernandez about the looks of her legs. However Defendant did not mention this and just alluded again to the scratches as looking painful and asked Hernandez how she got the scratches. Hernandez again ignored Defendant’s questions about her scratches and began asking Defendant for a dollar. Hernandez continued to ask for a dollar over and over.
. As a way of making Hernandez feel that her legs were pretty despite the creases, scratches, and as a joke because of Hernandez’s liking of amorous talk, Defendant said, “I’ll give you the dollar if you let me touch your legs.” Hernandez appeared a little surprised at first and then gave a big smile. She was happy and excited and began talking about where Defendant should touch her leg, pointing to various places. Defendant then gave Hernandez the dollar without touching Hernandez’s legs.
The two talked for a while longer and then Hernandez requested a second dollar. Defendant said to Hernandez, “I already gave you a dollar.” Hernandez pleaded for another dollar and finally picked up Defendant’s hand and placed it on her left knee in order to encourage Defendant to give her another dollar. Defendant gave Hernandez a friendly pat on her left knee and removed his hand. Defendant does not remember if he gave her another dollar or not at this point. In any event, Hernandez began saying “touch me here, touch me here,” while pointing to the side of her left knee, in order to get another dollar. Because of Hernandez’s enthusiasm Defendant gave the side of Hernandez’s left knee a brief pat with the back of his hand, intentionally using the back of his hand so as to not be intimate. Defendant then gave Hernandez another dollar. This was the extent of the touching of Irene by Defendant and the incident occurred in a climate of friendship, humor and camaraderie.
Upon seeing the touching of Hernandez’s leg, Karina Bernal (who was seated nearby) shouted out enthusiastically: “I’ll let you touch my leg for a dollar!” Bernal was excited and thought she might be able to get a dollar too. Bernal ran around a table near Defendant’s desk and seated herself on the table, so that her legs were dangling in front of Defendant. A fourth girl temporarily became involved and held up a book-bag to block the view of the class. Defendant sternly said “no,” feeling that blocking the view of the class to be silly. This girl insisted that something be held up. Consequently, Karina Bernal said, “I have a pair of shorts in by backpack.” She pointed to her backpack and Kristina Pesina took the shorts out of Bernal’s bag and held them up. Defendant waved for them to be put down, but the fourth girl insisted that they be held up, so that is what Pesina did. Consequently, Christina Pesina got involved in the situation by being virtually forced to hold up the pair of shorts.
The climate was one of humor and camaraderie and not of lust or passion. The girls themselves were encouraging the behavior and controlling the situation. Hernandez, in a spirited tone, told Bernal “We can use my leg to see where he should touch you (Bernal’s leg).” The two girls began pointing to Irene’s left leg and began joking around and laughing about where Defendant should touch Bernal. Finally Bernal said, “You can touch me here,” while pointing to her right knee (evidence of this is on police tapes).
Bernal then decided to tease Defendant by saying “no” in a quite voice and turned to talk to Cristina Pesina who was setting beside her. By this time Pesina had put the shorts down. Defendant testified during the criminal trial that he gave Bernal a small pat or swipe on the top of her knee. This was because Bernal had testified that this is what Defendant had done, and the description at the time seemed to be harmless. However, in actually Defendant did not pat Bernal on her knee, but gave her a small touch or tickle under her right knee, at or near the bend. Bernal responded by quickly turning around and saying, “You owe me a dollar for that!” Defendant held out the dollar and Bernal grabbed it with great enthusiasm. Then quickly thinking of how to get more money Bernal said, “I’ll show you my stomach for five-dollars!” Defendant said, “no, no Karina.” Karina and everyone else then became calm and this was the extent of Defendant’s involvement with Karina Bernal during this period of the events.
The series of events concluded with some conversation between Defendant, Bernal, Hernandez, and Pesina. Pesina testified at the Criminal trial that she asked Defendant if he had ever had sex in water. Defendant remembers it being Irene Hernandez who asked the question and not Pesina, however regardless of who asked the question Defendant answered by saying, “I once tried it but it didn’t work out.” After that Irene Hernandez began asking more questions, which Defendant considered to be typical teenage curiosity. Hernandez asked Defendant, “Do you know what sixty-nine means?,” to which Defendant answered, “Everyone knows what that means.” Hernandez then asked Defendant, “Do you know what ninety-nine means?” Defendant answered that he did not know and Hernandez just giggled a little. One of the girls asked Defendant how many times he had had sex. Defendant remembered a situation many years before where a girlfriend of his by the name of Michelle had asked him to keep track of their sexual encounters. Consequently, Defendant mentioned that he had once marked each time he had had sex on a black board over a period of two years. Hernandez, then began to say to Defendant, “Didn’t you just like to stick you dick into her?” She repeated this several times practically yelling it in Defendant’s face. Hernandez then said, “Did she bleed afterwards?” Defendant responded by telling Hernandez to be quiet and stop talking like that.
Bernal and Pesina left during this time and went to a wash basin at a far corner in the room. They shortly seated themselves back on the table next to Defendant. There was a small amount of continued conversation, Bernal and Hernandez began asking Defendant “what color is your thing, is it pink, is it white?” Defendant did not respond and things just died down shortly after that. Hernandez left the desk and milled around a bit. Bernal returned to her seat and stuck her leg straight up into the air as if she were trying to determine if it was attractive or not. It is apparent that after class, Bernal went out bragging about her getting a dollar by asking Defendant to touch her leg. Evidence of this is on the police tapes, being descriptions of Karina’s behavior made by the other girls.
Defendant emphatically denies that anything that went on was intentional and what occurred was just an unfortunate series of events that built upon itself bit by bit due to: his friendship with Irene Hernandez, the interest and enthusiasm of the girls who involved themselves, and his lack of experience as a teacher. Since a person cannot annoy any person by doing what that person requests then it is obvious that Defendant was not in violation of P.C. 647.6, nor did he commit a tort against the girls. Defendant reasserts that everything that went on was done in a sprit of humor and camaraderie and nothing that went on was serious enough to have been in violation of any law, nor could have traumatized any human being of any age.
As to Maria Favela
Here again, Defendant admits that there was an incident, but denies that he committed any crime, nor committed any tort against the Plaintiff.
On the day in question Karina Bernal went bragging that she had gotten a dollar out of Mr. Defendant by asking him if he wanted to touch her leg. Maria Favela was one of the girls that Bernal went bragging to. Consequently, Maria Favela, wanting money too, later came into Defendant’s classroom during the last period of the day (which she was a member) demanding a dollar.
Favela briskly walked up to Defendant, who was standing at the back of the room leaning aginst the countertop. Favela kept shouting, “I want a dollar, give me a dollar!” Defendant replied, “Why should I just give you a dollar?” Favela answered, “Just give me a dollar, I just want a dollar!” Favela kept extending her arm with hand outstretched gesturing for him to put the dollar in her hand. Defendant left the area and walked to the blackboard and gave the class assignment. Then the Defendant took his seat and took roll. Favela pursued Defendant to his desk and kept demanding the dollar. When Defendant would not give Favela the dollar Favela spoke with a friend and the friend came up to Defendant and said, “Will you give her the dollar, if she gives you her phone number?” Defendant answered “no” and was beginning to get a little upset. The girl kept coaxing Defendant to accept the phone number, so finally Defendant said “ok” knowing it was just a joking situation and it would make Favela feel good.
Favela wrote down the phone number (Defendant already had all of the student’s phone number directly in front of him in his class-book). Favela started to hand Defendant the phone number, but then pulled it back and started playing “keep-away” with it. At one point Favela held it close to her side and Defendant’s accidentally brushed Favela’s side with his hand. She finally threw the phone number to Defendant, while having a big grin on her face. Favela was playing with Defendant and the Defendant was playing with her in return. Favela then asked Defendant if he would take her away for the week-end. Defendant does not remember how he answered. In any event, it was Favela who was initiating all of the activities and causing there to be a climate of flirting and slight sexuality -- not the Defendant. At some point Favela grabbed the paper with her phone number on it and tore it up and quickly placed the pieces of paper on Defendant’s desk in a little pile. Again, Favela was smiling, playing and enjoying herself.
The Defendant then removed his wallet from his back pocket and took out a dollar. In the spirit of fun, the Defendant crumpled the dollar bill back into his hand as Favela went for it. Defendant gently shook Favela’s hand. Defendant then straightened the dollar out a second time, and when Favela went for it he again crumpled it back into his hand and again gently shook Favela’s hand. Defendant straightened the dollar out a third time and presented it to Favela. Defendant intended to give it to her this time, but Defendant’s Teacher’s Assistant joined in and grabbed the dollar and handed it to Favela. Favela seemed happy and showed no sign that she was annoyed or had been annoyed. She was smiling and the class cheered that she had gotten the dollar.
Defendant does not remember for certain if the following was an interlude to Favela’s getting the first dollar or if Favela asked Defendant for another dollar, but at some point when Favela was asking Defendant for a dollar Defendant was seated and was having a difficult time retrieving his wallet from his pant’s pocket because the material from the pocket kept coming out with the wallet. Not being able to retrieve his wallet with one hand and trying to concentrate on his deskwork, the Defendant asked Favela if she would get the wallet out of his pocket for him – which Favela did not do.
Favela left the area for awhile and Defendant proceeded to do his work, conducting his lesson and working at his desk. At some point Roxana Gonzalez, who was a student in the same class as Favela, came up to him and started acting up, which was typical of her. When Defendant asked her to be quiet and return to her seat Gonzalez picked up an empty cardboard video box and threw it at the Defendant. Defendant became a little upset and sent Gonzalez to the Dean’s Office. It was then that Gonzalez reasserted her previous allegation that Defendant had touched her “butt” several months earlier and told school officials that the Defendant had been bothering or molesting Maria Favela during the class. This complaint by Gonzalez was obviously made to pay Defendant back for sending her to the Dean’s Office.
Near the end of the class, Favela squeezed herself in back of Defendant into a corner of the room to Defendant’s right side. There she stood looking into a box with some papers in it. Defendant had NOT called Favela to him or this area and students were not allowed in this area. Favela came completely of her own free will, which showed that she had not been annoyed by anything that had transpired previously. Defendant felt that Maria’s coming so close to the Defendant was a sign that she wanted to play a little more and be chased out of the area where she knew she wasn’t supposed to be. Therefore, Defendant made a small gesture like he might give Favela a tickle. He stuck out his hands toward the vicinity of her waist. Seeing this, Favela quickly yelled “rape.” Defendant backed away and Favela scooted backwards over Defendant’s desk with a very large grin on her face. Favela then took a seat near the Defendant on the counter-top only five feet from Defendant’s desk. Defendant took his seat and continued to work.
At no time during any of the activities that transpired between Favela and himself did Defendant intentionally annoy or molest Maria Favela. He felt he was playing with a child who was playing with him and that is all that was in his mind. Favela in fact “dogged” Defendant for money for most of the entire one and a half-hour class period asking for a dollar then a quarter or for anything she could get. Defendant was just responding to her playful antics with playful behavior of his own. The actions that occurred could have occurred between an adult and a child anywhere, anyplace and have no precedent in California law for being considered acts of molestation.
In addition to the above incident, Maria Favela had once written a letter to school officials that Defendant had done the following: blew kisses at her, patted her on the head repeatedly, and once looked at her crotch are while she was crawling over a table. Favela also testified to these things during the criminal trial. Defendant absolutely denies all of these allegations. Defendant patted Favela once and only once. Defendant never did anything that could even have been misconstrued as blowing a kiss to Favela, and there was never a time when Favela went over a table. These allegations were all either knowing lies on the part of Maria Favela or figments of her imagination.
Defendant would like to add that he was fond of Favela and felt nothing but kindness for her due to her frail physique and childish personality. Defendant would never have intentionally done anything to annoy or molest Maria Favela – he was only playing with Favela in a way that she seemed to be enjoying at the time. If Maria has suffered due the events in question Defendant is sorry, but feels that the responsibility lies with those who have made her feel that something terrible happened, when nothing did, and not with the actions of the Defendant. Maria should move on with her life and put these things behind her.
Conclusion
Defendant committed neither crime nor tort. He was lied about time and time again and his actions were taken completely out of the context in which they occurred. It is the Defendant who was the victim of the events and he was the only victim. Defendant has suffered the following:
· Defendant was incarcerated for six months causing him unspeakable emotional trauma.
· Defendant was severely beaten while incarcerated causing the crushing of his left cheekbone. He had to undergo reconstructive surgery and five weeks hospitalization.
· Defendant’s career was destroyed. It took Defendant twenty-two years to earn his eight years of college, which have been made all but worthless by these obscene and unjust convictions.
· Defendant’s teaching credentials were revoked, causing him to not be able to teach in the United States.
· Defendant lost nearly all of his personal property while incarcerated, including his car, thousands of dollars in furniture and photography equipment, as well as his childhood pictures and other memorabilia.
· All three of Defendant beloved pet cats died as a result of Defendant’s incarceration. One went stray and was never seen again, another lived outdoors for the entire six-month period and came to Defendant skinny, sick, and filthy upon Defendant’s return. This cat later died while in care of a friend of the Defendant. A third cat, who was nineteen (19) years old, had to be put to sleep for lack of proper medical care during Defendant’s period of incarceration.
· Defendant was left penniless and homeless upon release from the County Jail. Consequently, Defendant had to live in a homeless shelter for several months.
·Defendant has been made unemployable in his own country and has had to leave the United Stated in order to survive. He most probably will never again be able to live in the United States.
Defendant is dumbfounded at the hysteria, pettiness, and abject cruelty that has been shown to him and reiterates that he is completely innocent. Defendant asserts that all of the actions were done in a spirit of humor, were completely innocuous, and could not have possibly caused harm to any normal person of any age. The fact is, is that all of the events in question were initiated by the girls themselves. Most of the allegations of sexual comments were merely the result of the girls quoting themselves and attributing their quotes to the Defendant. The sexual comments that Defendant did make were only made in direct response to the questions posed by the girls and were extremely minor in nature. There were no allegations that any of the comments were about the girls themselves or showed sexual feelings for the girls. What touching that occurred was far too minor to have been done for any sexual gratification and again was only done at the requests of the girls, or due to the general behavior of the girls. Finally, Defendant firmly states that Los Angeles Unified School District was blameless in this matter.
Declaration
I, Defendant in Pro Per, declare that all of the forgoing is true. If called upon to do so, I would testify as to the validity of all of the aforementioned claims made within this document.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Note: LA Unified School District settled out of court with the Complainants, so each of the above liars got rewarded for their lies and cruelty, while a decent hard-working teacher lost everything he had ever worked for. The civil action against Defendant was dismissed when the settlement with the school district was reached. The settlement details are unknown to Defendant.
.