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Beating Victim Irate Over Sailor's Bid to Soften Conviction to Aid Job

September 13, 1987|H.G. REZA | Times Staff Writer

Theresa Valenzuela said she was simply being nice to the young sailor who approached her in a Coronado bar one night last year. He appeared pleasant enough, Valenzuela said, and she listened to his conversation up to the point where he began discussing sexual fantasies.

At that point, Valenzuela said, she turned around and ignored the sailor, Theodore Fitzhenry, who finally walked away. But the night was still young.

According to court documents, a couple of hours after their conversation a drunken Fitzhenry followed Valenzuela as she prepared to leave and abruptly grabbed her buttocks while continuing to talk about sex. As she turned around to slap Fitzhenry, he pulled back and punched her. When she fell to the ground, Fitzhenry kicked her in the face. He then attempted to flee, but bar patrons who had witnessed the attack detained him until police arrived.

Admits to Drinking 14 Beers

For Fitzhenry, who admitted drinking 14 beers that night, there was never any question about his responsibility for the attack. In September, 1986, he pleaded guilty to felony assault but was spared a jail sentence by Superior Court Judge Richard Haden, who voiced his admiration for Fitzhenry's Navy SEAL training and his solid upbringing.

At the sentencing, Valenzuela pleaded with Haden to put Fitzhenry in jail. Instead, Haden, who is a commander in the Navy Reserve, put Fitzhenry on probation and under strict supervision for a year, fined him $1,000 and ordered him to make restitution by paying into the state victims crime fund.

A disappointed Valenzuela said she was thankful nonetheless that the judge ordered Fitzhenry to make restitution. She said then she thought the unpleasant ordeal, which had begun with the attack on March 28, was finally behind her.

But 18 months later Valenzuela, 34, and Fitzhenry, 25, were in court again for a hearing that prompted Valenzuela to wonder out loud, "Just who is the victim in this case?"

Defense attorney Donovan Dunnion, appearing for Fitzhenry, used an Aug. 28 review hearing to plead with the court for a reduction of Fitzhenry's felony conviction to a misdemeanor. Dunnion said that unless the conviction was reduced, Fitzhenry could not remain in the Navy and a member of the elite SEALs.

The request angered Valenzuela, who called the petition outrageous and an insult to the criminal justice system. The attack had left her scarred and traumatized, she said.

"He should be thankful that the judge did not send him to jail. I mean, this takes a lot of gall," said Valenzuela, a veteran of four years as a Border Patrol agent.

Fitzhenry's petition presented a difficult dilemma for Judge Haden, who declined to discuss the case. The probation report submitted by the defense to the court in 1986 was highly sympathetic to Fitzhenry. By all accounts Fitzhenry was a model son and sailor, never having been in trouble with the law before the beating he inflicted on Valenzuela.

A psychological evaluation and biographical data submitted by the defense at the sentencing indicated that Fitzhenry's background is rooted in Middle America values and made him an ideal candidate for leniency.

A native of a small, rural Indiana town, Fitzhenry is the youngest of six children. According to the defense probation report, his 27-year-old sister suffers from multiple sclerosis. Before joining the Navy, Fitzhenry often helped his mother care for the bedridden woman, said the report. An older brother who was a West Point graduate and Green Beret in Vietnam returned from the Asian war "with a lot of problems," the father was quoted as saying in the report.

But Haden still could not ignore the victim. An L-shaped scar on her right cheekbone and weekly sessions with a psychiatrist were constant reminders of the beating she endured, Valenzuela said. She was represented by the district attorney's office at the August hearing and demanded the justice that she felt had been denied her.

"I want him in jail," she said.

Fitzhenry did not return several phone calls by a reporter.

In arguing for a reduction of the conviction, Dunnion reminded Haden that his client had met all of the conditions that the judge imposed on Fitzhenry in lieu of a jail sentence. Justice cried out for a reduction to a misdemeanor, Dunnion said after the hearing.

But the judge also had before him a very bitter victim who was only slightly relieved when Haden politely declined to reduce Fitzhenry's conviction "at this time." Haden will consider the request again at another review hearing in December.

Dad Was a Deputy

"I come from a law enforcement family. I was brought up to believe in the system," Valenzuela said. "My father is a retired deputy sheriff, and I was a reserve with Chula Vista police before I became an (Border Patrol) agent. But I think the system has failed me. Fitzhenry's already been convicted. Why must we keep having these review hearings?"

When Haden sentenced Fitzhenry on Sept. 12, 1986, he expressed admiration for the young man's

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