DA Appeals Shortened Sentence for Toddler Rapist as Attorneys Rally Around Judge Behind Controversial Ruling

By PAUL ANDERSON

Orange County District Attorney Tony Rackauckas said today he has filed a notice of appeal of a judge’s ruling reducing a state- mandated sentence of 25 years to life to 10 years for a defendant who sexually assaulted a 3-year-old girl.

The April 3 ruling by Judge M. Marc Kelly in the case against 20-year-old Kevin Jonas Rojano-Nieto has inspired a recall effort that has gained the support of Orange County Supervisors Shawn Nelson, Lisa Bartlett and Todd Spitzer, who is also the chairman of the Board of Supervisors. Those efforts, in turn, have drawn criticism from multiple defense attorneys who decry a chilling effect on judges.

Rackauckas told City News Service he expects the actual appeal to be filed within the next few weeks. At a news conference today, he continued to sidestep questions about the recall. The county’s top prosecutor said it was more appropriate for him to address the issue in the appellate court.

But Rackauckas said the hullabaloo over Kelly’s ruling could lead to a chilling effect on other judges.

Rackauckas said, “We need a strong, healthy judiciary” to make tough calls “without fear of retaliation.

Rackauckas, a former judge himself, said he felt it was “inappropriate” for his office to directly comment on the recall effort.

“Our remedy is the appeal,” he said. “We’re going to fight it out in the courts.”

Rackauckas noted Kelly had a reputation for issuing “pretty stiff” sentences before the Rojano-Nieto ruling.

Rackauckas said some of the facts of the case that the judge ignored in his ruling -- such as the defendant covering the mouth of the victim as her mother knocked on the garage door where the sexual assault took place -- will factor into the appeal.

“That’s an important aggravating fact,” Rackauckas said.

Some of Kelly’s critics point to a part of his ruling in which he tried to differentiate the attack on the defendant’s relative from a stranger assaulting a child in public.

“However, in looking at the facts of Mr. Rojano’s case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case,” Kelly said. “Mr. Rojano did not seek out or stalk (the victim). He was playing video games and she wandered into the garage. He inexplicably became sexually aroused but did not appear to consciously intend to harm (the victim) when he sexually assaulted her.”

“Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child,” Kelly said. “There was no violence or callous disregard for (the victim’s) well-being.”

County supervisors on Tuesday were poised to vote on a resolution calling for Kelly’s resignation, but they backed off in the face of the opposition from defense attorneys. County officials plan to tweak the language of the resolution and try to vote on it again this coming Tuesday.

The Orange County Criminal Defense Bar Association’s Founding Board has condemned the calls for resignation and recall of Kelly.

Attorney Paul Meyer told county supervisors it is debatable if Kelly made the right call, but he insisted the judge made a “detailed” and thoughtful decision.

“He may have decided the case wrongly, but that is a Court of Appeal question,” Meyer said as he asked the supervisors to let the legal process play out before making any more comments about the ruling.

Meyer also noted that the victim’s family members argued for a lenient sentence, and that the resolution was not honoring their feelings on the subject.

Attorney Kenneth Reed told City News Service that he was disturbed by the howls of protest directed at the judge, who is forbidden by the ethical obligations of his office to respond. He is also worried about a chilling effect on local judges.

“California judges should not take into consideration the whims of the day or be looking over their shoulder, fearful that a decision might lose them their job,” Reed said.

At Tuesday’s board meeting, Spitzer rejected any notion that the board’s comments on the ruling will affect how the appellate justices rule.

The appellate justices, “aren’t looking in the papers every day wondering what Spitzer, Bartlett and Nelson think of this case -- and I know all of them.”

He refused to back down from his criticism.

“I am making no excuses, and I am completely unapologetic about this case,” Spitzer said. “I will never, ever apologize for standing up for a 3- year-old child who was taken advantage of by a 19-year-old man.”

Kelly ruled it would be cruel and unusual punishment and, therefore, unconstitutional to sentence Rojano-Nieto to a life sentence.

Kelly noted it was the same punishment for first-degree murder and longer than the terms behind bars those convicted of manslaughter or second- degree murder receive.

Kelly also cited reports from psychological experts that downplayed the possibility the defendant would sexually assault anyone else when released from prison. He also relied on appeals from family members who requested a lesser sentence.

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City News Service

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