On Friday, Superior Judge M. Marc Kelly of Orange County, California, reduced the mandatory minimum 25-to-life sentence of Kevin Jonas Rojano-Nieto by 15 years. Nieto, who was convicted last December of one felony count of sexual intercourse with a child and one felony count of lewd act upon a child for sodomizing a 3-year-old toddler, will now only spend 10 years behind bars.
Over objections by the Prosecution, Judge Kelly lessened Rojano-Nieto’s sentence to 10 years in state prison, citing that the mandatory minimum sentencing of 25 years to life was “cruel and unusual punishment,” as Rojano-Nieto did not “intend” to harm the toddler while raping her.
Rojano-Nieto was playing video games in his garage last summer when the 3-year-old victim wandered away from her home and into his garage. Rojano then sexually assaulted her, at one point covering her mouth to hide the child’s cries from her mother, who was looking for her. When her mother finally found her, she was unaware that anything had happened until the child complained of pain, at which point her mother found injuries consistent with sexual assault and called the police.
Deputy District Attorney Whitney Bokosky told the City News Service that Judge Kelly considered the full 25 years unconstitutional because Rojano-Nieto did not intend to harm the 3 year old when he sodomized her. “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,” said Kelly. “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.”
Bokosky believes otherwise, saying that the judge should have taken into account Rojano-Nietro’s attempt to cover the girl’s mouth during the attack. The prosecutor said her office is discussing an appeal of the judge’s reduced sentence.
This is not the first time Judge Kelly has shown sympathy for a convicted sex offender. Last fall, Judge Kelly overturned a conviction against former Highway Patrol lieutenant Stephen Deck, 54, for an attempted lewd act upon a child. Deck was arrested after being involved in a sting operation when he drove to the house of someone posing online as a 13-year-old girl, with the intent of having sex with her.
A petition to get Judge Kelly removed from the bench is in circulation, with at least 13,000 signatures so far.
Media Resources: Orange County District Attorney Press Release 4/3/15; Orange County Register 4/4/15; 1/10/14