Judge's Lenient Sentence for Toddler Rapist Illegal, Says District Attorney

By PAUL ANDERSON, BEA KARNES and AUTUMN JOHNSON

Orange County’s top prosecutor announced Thursday that he intends to appeal the 10-year prison term given to a 20-year-old man who sexually assaulted a 3-year-old girl — a sentence that has drawn angry demands for the recall of the judge who handed it down.

The mandatory minimum under state law for the sexual assault would have been 25 years to life and the maximum would be 33 years to life in prison. Orange County Superior Court Judge M. Marc Kelly, however, ruled that the minimum would be cruel and unusual punishment and, therefore, unconstitutional to sentence Kevin Jonas Rojano-Nietoto a term called for by the guidelines.

“I plan to appeal it,” District Attorney Tony Rackauckas told City News Service. “We still have to wait for the transcripts (of Friday’s sentencing hearing), but everything about the case indicates it’s clearly an illegal sentence and one that is appealable.”

Rackauckas disagreed with the judge’s ruling that he had the authority to deviate from the state-mandated punishment in the case.

“It’s mandatory language in that section (of the law),” Rackauckas said. “So that indicates there is no discretion... We disagree with the ruling vehemently and our remedy is to appeal. We expect this will be reversed on appeal.”

Criminal defense attorney and former prosecutor Mary Ann Bird, who has defended many cases of sexual deviance, also disagrees with the judge’s rationale and sentencing.

“The molestation of a child is a crime of opportunity,” Mary Ann Bird told Patch. “Clearly, when the 3-year-old child wandered into the garage, the opportunity presented itself, and he took advantage of it.”

Bird believes the sentence given to Rojano-Nieto was illegal, according to the California Penal Code.

Rojano-Nieto was found guilty of two crimes--Section 288.7 Sexual Intercourse or Sodomy with a Child 10 Years or Younger; and Section 288 (a) Lewd Act Upon a Child Under 14.

“The court could have sentenced him to a base of 25 years to life for the 288.7 charge alone and sentence him to a concurrent time of three, six, or eight years for the 288(a) PC charge,” said Bird. “I see no lawful method for the Court to sentence him to 10 years. It is clearly an illegal sentence and in violation of the indeterminate sentencing law. He should have been sentenced to no less than 25 years to life, the indeterminate term as required by the Penal Code.”

Residents from all over the state expressed outrage over the sentence, complaining that it appeared sympathetic to the perpetrator rather than the toddler victim. The outcry prompted multiple petition drives aimed at having the sentencing judge removed from the bench.

A Facebook page that was created to mobilize efforts has garnered close to 5,700 likes since it was launched on April 6. A Change.org petition was created on April 6 by a Chicago resident and is getting support from across the nation.

Full story here:

• Citizens Demand Removal of Judge Who Reduced Sentence for Child Rapist

But any sort of recall effort would be difficult. Organizers would need to collect “just shy” of 90,000 signatures in 160 days, said Orange County Registrar of Voters Neal Kelley.

All of those signatures must come from registered voters in Orange County, he said. And it would be wise to collect more than the minimum since there’s bound to be challenges to some signatures, the registrar said.

Kelly’s ruling has drawn cries of protest across the country. Joelle Casteix of Survivors Network of those Abused by Priests said she was “outraged” by the decision.

“Already, we suspect, other child molesters are planning to seek leniency just because their assaults were less brutal than others or in some other way ‘not typical,”’ Casteix said. “That’s just wrong.”

Rojano-Nieto was convicted Dec. 3 of sodomizing a child younger than 10 and lewd or lascivious acts with a minor.

The defendant was playing video games in the garage of his Santa Ana residence last June 4 when the 3-year-old victim, to whom he is related, joined him, said Deputy District Attorney Whitney Bokosky.

Rojano pulled the toddler’s pants down and sexually assaulted her, the prosecutor said.

The victim’s mother, who was looking for the girl at the time, went to see if she wandered over to the garage, but the door was locked. The mother then went to a neighbor’s home to check there and then returned to the garage. But by then, the defendant had unlocked the door, and she took her daughter back into the home, Bokosky said.

Rojan-Nieto put his hands over the girl’s mouth to keep her quiet when her mother initially came to the garage and found the door locked, Bokosky said. He then had the child masturbate him, she said.

The sexual assault came to light when the girl complained of pain in her anus and the mother noticed tearing, Bokosky said.

In handing down his ruling, Kelly said he considered the general principles of sentencing, which include “protecting society, punishing the defendant, encouraging the defendant to lead a law-abiding life and deter him from future offenses, deterring others from crime by demonstrating its consequences, preventing the defendant from committing new crimes by isolating him with incarceration.”

Kelly went on to say that sentencing “is the most difficult part of a trial judge’s job ... It is not an easy task and there are often no bright-line answers to what constitutes a fair and appropriate sentence.”

Kelly acknowledged that he was entering rare legal waters, commenting that in his 15 years on the bench he had never found a sentence “cruel and unusual” and required a deviation from the state mandates.

Kelly also said he agreed with prosecutors that the crime viewed “in the abstract” would pose “a significant degree of danger to both vulnerable children and society in general. Sodomy of a 3-year-old child is a horrific crime, and imposition of harsh punishment will ordinarily not give rise to constitutional concerns. 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 the defendant “did not seek out or stalk (the victim),” and that he “inexplicably became sexually aroused but did not appear to consciously intend to harm (the victim) when he sexually assaulted her.”

The judge agreed with defense attorney Erfan Puthawala that “in an instant, he (the defendant) reacted to a sexual urge and stopped almost immediately after he put his penis in (the victim’s) anus. Within seconds of commencing his offense, he realized the wrongfulness of his act and stopped without ejaculating. Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child. There was no violence or callous disregard for (the victim’s) well being.”

The defendant “has shown extreme remorse for his actions and has been willing to accept the consequences,” Kelly added. “Mr. Rojano was born into and raised in a dysfunctional familiar environment.”

Pointing to a doctor’s report, the judge said that while growing up, the defendant suffered “a great deal of family disruption and abuse, making him an insecure, socially withdrawn, timid, and extremely immature young man with limited self-esteem.”

Rojano-Nieto’s defense attorney, Erfan Puthawala, believes that the judge was correct in reducing the sentence.

According to Puthawala, Rojano-Nieto was evaluated by a court-appointed psychologist who found the defendant was “not a predator, not a pedophile, not someone who is a danger to society who will reoffend.”

Puthawala believes his client needs therapy, not incarceration. Given his client’s age, lack of criminal history, being a high school graduate, working in the community at a grocery store, no history of alcohol or drug abuse--reducing the sentence was the correct thing to do. He says the DA’s office overcharged in this case, that this was the most benign form, although this is still a “terrible thing that happened.”

Bird says studies show that pedofile behavior usually exhibits in the prepubescent phase of someone’s life.

“I fully expect the DA’s Office to appeal, especially considering the public outcry,” Puthawala told Patch. He says that since the Judge Kelly explained his actions, he was fully within his constitutional rights to override the intent of the legislature.

Puthawala added, “I would be surprised if the judge is overturned.”

Kelly was also moved by the support of the defendant’s parents. He allowed them to hug their son before deputies handcuffed him and took him to a holding cell when the hearing concluded. He also let the defendant’s grandmother hug him.

Kelly said he did not “forget” the victim in the case, but when she testified in the trial, she appeared to be a “happy, healthy child.”

“It is hard to gauge how this crime might affect her mental state in the future, but she did not suffer serious violent physical injuries, and by all counts she appears to be headed for a normal life.” the judge said. “It is the court’s hope that she has fully recovered from this incident.”

The defendant’s parents requested probation in the case, but Kelly said it was necessary that Rojkano-Nieto be “punished severely for his conduct.”

Kelly declined to comment on the recall effort via a court spokeswoman, citing the canon of judicial ethics as prohibiting him from comment.

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• City News Service
• Image: Kevin Jonas Rojano-Nieto courtesy of the Orange County District Attorney’s Office

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