Wednesday, Nov. 19, 2008

Ex-Pitman teacher's attorney wants 'stay away' order to go away

Carl Kubicek’s attorney said today he wants to reverse an order that requires the former Pitman High School teacher to stay away from the teenage girl with whom he’d had sex.

Kubicek was in court for allegedly violating the "stay away" order set by Judge John G. Whiteside.

Kubicek was found with the victim on Sunday, just a month before he is due to begin his seven-month jail sentence on two felony sex counts, according to Modesto police.

Stanislaus County probation officers arrested Kubicek, 36, after police found him and the now-18-year-old girl in a Honda Civic near Coleman Brown Park.

On Dec. 8, defense attorney Frank Carson will ask Stanislaus County Superior Court Judge John G. Whiteside to get rid of a "stay away" order that keeps Kubicek from contacting his now 18-year-old victim. Carson said the victim plans to testify.

Kubicek had sex more than two dozen times with the then-17-year-old Turlock student in his classroom and at her house, according to court documents.

Deputy District Attorney Elaine Casillas said Carson’s motion was served late Tuesday. Carson’s logic, Casillas said: Jane Doe "is an adult and wants to be with him."

Carson and Whiteside also sparred over the defense attorney’s request to remove a GPS device worn by Kubicek to track his movements. "My client is irreparably harmed," Carson told the court.

"I don’t think so," Whiteside countered.

Carson then added his client can’t afford to pay for the device.

"He doesn’t have the money," Carson said.

"He’ll have to worry about that later," Whiteside retorted.

Chief Probation Officer Jerry Powers said the GPS device costs Kubicek about $8 per day. Kubicek began wearing the device, which includes an ankle bracelet and a transmitter on his belt, on Tuesday. But not without “great protest,” Powers said.

“We had some discussions about whether we had the authority to do it or not,” Powers said.

Kubicek did not get state prison time when sentenced, in part because the victim asked for leniency. The two felony charges of unlawful sex carried a maximum sentence of three years and eight months.

Bee staff writer Merrill Balassone can be reached at mbalassone@modbee.com or 578-2337.