DA Appeals Decision to Shave 15 Years from Toddler Rapist's Sentence

WARNING: This story contains graphic or disturbing details.

An Orange County prosecutor argues in newly filed court papers that a judge erred when he reduced the sentence of a defendant who sexually assaulted a 3-year-old relative because the law mandating a life term did not “shock the conscience” of the community.

The opening brief from the office of Orange County District Attorney Tony Rackauckas appealing Superior Court Judge M. Marc Kelly’s sentencing of 20- year-old Kevin Jonas Rojano-Nieto -- a decision that has prompted a recall effort -- argues that the judge’s ruling contradicted legal precedent.

The argument, written by Senior Deputy District Attorney Matt Lockhart, centers around whether Kelly had the authority to circumvent a legally mandated sentence of 25 years to life for the sexual assault.

“While reasonable minds might differ as to whether a 25-year-to-life sentence for sodomizing a 3-year-old is reasonable, the legislature has clearly spoken,” Lockhart wrote. “The trial court cannot shunt the legislature’s determination of punishment absent a showing that the sentence is so ‘grossly disproportionate’ to the offense that it ‘shocks the conscience and offends fundamental notions of human dignity.”’

Kelly said he felt the punishment was “cruel and unusual” and violated the state constitution.

Related

• Citizens Demand Removal of Judge Who Reduced Sentence for Child Rapist
• Judge Shaves 15 Years from Mandatory Sentence, Noting Rapist of 3-Year-Old Didn’t ‘Intend Harm’
• Leaders Vow to Push Out Judge for ‘Unconscionable Ruling’ In Favor of Child Rapist
• OC Leaders Back Off Effort to Oust Judge for Toddler Rapist Leniency

Kelly cited the case of People v. Dillon, which involved a 17-year-old high school student who fatally shot a property owner while robbing him of a crop of marijuana. The defendant fired a rifle at a shotgun-wielding victim in the case, so the state Supreme Court reduced a first-degree murder conviction to second-degree.

Lockhart said there was virtually no comparison.

“In fact, the only thing defendant has in common with the defendant in Dillon is a lack of prior criminal history,” Lockhart wrote in the brief filed Tuesday.

The prosecutor’s brief also revealed new information about the case, including that Rojano-Nieto initially lied to Santa Ana police when he said the girl was injured because he kicked her for annoying him.

He then said he “wanted to avoid his sister’s false claim of molestation when he had only kicked her” because he got in trouble earlier when his “little brother had once told his mother that defendant had violated him by grabbing his penis.” The defendant then claimed his “brother had lied and later recanted.”

Eventually, Rojano-Nieto admitted he “picked up (the victim) and pulled her pants down for five seconds,” according to the brief. “He put his penis in her butt. He claimed that ‘something clicked’ and he stopped... He mentioned that he was a virgin and that he wasn’t really thinking.”

Rojano-Nieto also denied covering up the girl’s mouth so she couldn’t call out to her mother as he sexually assaulted her in June of last year, according to Lockhart’s brief.

“He said he stopped when he realized she was getting hurt,” the prosecutor wrote. “He said he told (the girl) he was sorry.”

Rojano-Nieto assaulted the girl in a garage, where he played video games. The girl wandered in as her mother and grandmother were preparing a family dinner in the house.

When the girl’s mother realized the toddler was missing, she went to the garage and knocked on the locked door, but got no answer so checked a neighbor’s home, where the girl had played previously and where she heard children frolicking.

When she did not find the girl at the neighbor’s, she returned to the garage and tried the door, which was now open, and found her daughter. Moments later, the girl complained her “rear end was hurting,” prompting the victim’s mother to find signs of bleeding.

Rojano-Nieto had also forced the child to masturbate him.

“During the sexual assault, (the victim) tried to call out to her mother, but couldn’t because she started coughing,” according to Lockhart’s brief.

Later, he covered the girl’s mouth so she couldn’t respond when they heard her mother calling for her, according to Lockhart.

Rojano-Nieto, who was convicted Dec. 3, had faced a minimum sentence of 25 years to life and a maximum of 33 years to life in prison. Kelly sentenced Rojano-Nieto on April 3 to 10 years, prompting prosecutors to file a notice of appeal later that month.

The victim’s family beseeched Kelly to lighten the defendant’s sentence.

Kelly’s ruling sparked widespread outrage in part because he said “there was no violence or callous disregard for (the victim’s) well being.”

The defendant’s attorney has an Oct. 15 deadline to respond.

TELL US WHAT YOU THINK IN THE COMMENTS: Is 25 years a cruel and unusual punishment for someone who rapes a toddler? Does three years better fit the crime?

City News Service; Photo: Judge M. Marc Kelly