An appeals court on Tuesday has reversed an Orange County Superior Court judge’s 10-year prison sentence for a man convicted of raping a 3-year-old, ruling that he should receive a much longer sentence.
Kevin Jonas Rojano-Nieto was convicted in December 2014 of child sodomy after he attacked his young relative in a garage.
The 20-year-old was supposed to receive a mandatory sentence of at least 25 years in prison for the rape.
However, at Rojano-Nieto’s April 2015 sentencing, Orange County Superior Court Judge M. Marc Kelly intervened and instead cut his sentence to 10-years.
Kelly said that although Rojano-Nieto’s crime was serious, he did not “seek out or stalk” his victim.
“He was playing video games and she wandered into the garage,” he said, according to court documents. “He inexplicably became sexually aroused but did not appear to consciously intend to harm (the victim) when he sexually assaulted her. As noted by defense, in an instant, he reacted to a sexual urge and stopped almost immediately…”
Kelly claimed that it was clear Rojano-Nieto did not use violence or have a “callous disregard” for the girl’s well being.
“Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child,” Kelly said.
Kelly also discussed Rojano-Nieto’s background, noting he had a difficult childhood that has rendered him an “insecure, socially withdrawn, timid, and extremely immature young man with limited self-esteem.” He said Rojano-Nieto was extremely remorseful about what had happened.
Because of this, Kelly declared Rojano-Neito was not a child predator but rather “a confused young man who acted inappropriately in an instant.”
Given those factors, Kelly said he thought the mandatory sentence in this case would be unconstitutional.
But the higher court saw it differently. In a unanimous ruling on Tuesday February 1, delivered by the 4th Circuit Court of Appeals, a three-judge panel concluded that Rojanao-Nieto’s offense was “grave and serious”
“Therefore, a sentence of 25-years-to-life is not grossly disproportionate to the crime and does not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution,” the judges wrote.
The court ordered that Rojano-Nieto, currently serving time in prison, be brought back to Orange County Superior Court to be re-sentenced to at least 25 years.
The original sentence sparked outrage. A Change.org petition calling for Kelly to be removed from the bench over the case was signed by more than 83,000 people. The Orange County DA’s office also decried Kelly’s decision, calling the sentence “illegal.”
“This was a good day for child victims of brutal sex assaults and the people of Orange County,” District Attorney Tony Rackauckas said in a statement after the appeals court handed down its ruling
This is not the first time Kelly imposed a lenient sentence on a man convicted of a sex offense.
In 2010, he sentenced a California Highway Patrol officer to probation for attempting to have sex with a 13-year-old girl, the OC Weekly reported.