OC Child Molester: The Seven-Year-Old Girl Wanted It

Jose Humberto Lopez Hernandez doesn't believe that Orange County's criminal justice system treated him fairly and that's why he's now living in a California prison.

One night at his cousin's house in Santa Ana, Hernandez, then 26 years old, decided to sodomize the woman's seven-year-old daughter, who'd affectionately called him uncle.

Though it is plainly illegal for an adult to have sex with a minor under any circumstance, he believes there are mitigating factors.

After his arrest, the 5-foot-6 and 200-pound Hermandez told police that he had been watching television when the girl initiated "arousing" sexual contact and he'd lost control of his penis--didn't know where it was going "to poke."

But, he noted, he'd only poked her in the rear for "30 or 40 seconds" after he covered her head with a pillow to suppress her screams.

(In a pre-arrest, police-inspired recorded phone call made by the victim, Hermandez said she would appreciate how gentle he'd been when she gets married and her future husband more than pokes her.)

At his November 2010 trial, the defendant--a father himself--admitted that he'd intended to have vaginal sex with the girl but missed because he'd been on drugs.

A jury convicted him on one count of aggravated sexual assault on a child and Superior Court Judge Richard W. Stanford, Jr. sent him to prison. He appealed, claiming prosecutors had no valid evidence that he'd used force or fear to engage in the illegal sex act. He also said that if he was going to be convicted of a crime it should have been a less serious one.

But this month a California Court of Appeal based in Santa Ana rejected his complaints.

"The evidence in this case established that [Hernandez] removed the victim's underwear, grabbed and lifted her legs so he could penetrate her and placed a pillow over her, in part because the victim complained that the defendant was hurting her," wrote Justice Richard Fybel on behalf of a three-justice panel.

Upshot: Hernandez will continue to serve his 15 years to life prison sentence.

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