Toddler Rapist Sentence Declared Illegal By Appellate Court

SANTA ANA, CA — The controversial 10-year sentence given to an Orange County man for sodomizing a 3-year-old relative was reversed Tuesday by an appellate panel, according to the Orange County District Attorney's Office.

“This was a good day for child victims of brutal sex assaults and the People of Orange County," Orange County District Attorney Tony Rackauckas stated. "The Orange County District Attorney’s Office applauded the decision by the Court of Appeal, which recognizes that the Legislature’s mandated punishment of 25 years to life for committing sodomy on a toddler is a constitutionally valid sentence designed to protect the most vulnerable victims in our community."

Warning: The details of this case may be disturbing for some readers.

The toddler sodomy case sparked international headlines and public rebukes for the judge who deviated from a state-mandated life term.

Orange County Superior Court Judge M. Marc Kelly startled his peers with his moderate 10-year sentence for 21-year-old Kevin Jonas Rojano-Nieto.

Kelly said Rojano-Nieto sexually assaulted the 3-year-old, but the judge did not consider the actions to be cruel or unusual with regard to sentencing.

"He was playing video games and she (the child) wandered into the garage," Kelly said. "Rojano-Nieto inexplicably became sexually aroused but did not appear to consciously intend to harm (the victim) when he sexually assaulted her. ... There was no violence or callous disregard for (the victim's) well- being."

Those statements prompted the initial recall effort for Kelly's seat, which failed when organizers could not get enough signatures to get it on the ballot last June.

Kelly has since been moved to Family Law Court in Orange, according to reports by the OCDA.

Rackauckas appealed Kelly's 10-year sentence for Rojano-Nieto, and the appeal was transferred to the Fourth Appellate District in San Diego in September.

The ruling on the appeal was handed down Tuesday by the three-justice panel, which ordered that the defendant be re-sentenced under the state's law mandating a 25-year-to-life term.

The appellate justices rejected Kelly's argument that the life sentence violated the state and federal constitutions regarding cruel and unusual punishment.

The panel cited a state Supreme Court ruling in which a 17-year-old's first-degree murder conviction for a shooting during a marijuana farm robbery was knocked down to manslaughter.

Unlike the defendant in the marijuana robbery, Rojano-Nieto was not a juvenile and he did not commit his crime due to a panicked impulse, the justices noted.

"Rojano consciously decided to sexually molest (the victim), as shown by the fact that he locked the garage door, promised to buy her Cheetos, sodomized her and then decided to have her masturbate him," according to the ruling penned by Associate Justice Joan Irion.

The justices stated that although the girl did not sustain serious physical injury, it would not be right to argue, as Kelly did, that her general well-being since the attack and lack of physical trauma weighed in the defendant's favor.

"Put simply, a sex offense against a small child is a grave offense because of the vulnerable nature of the victim and the risk of psychological harm to the child, regardless of any associated physical injury," Irion wrote.

The justices, unlike Kelly, were not swayed by the defendant's show of remorse during the trial, noting that he continued to molest the victim after the sodomy and did not express remorse right away.

"Instead, Rojano denied his actions to his mother, and he also refused to admit the molestation during the police interview until after he was confronted with the fact of (the victim's) injuries," Irion wrote.

City News Service contributed to this story/ Image: Judge M. Marc Kelly via Patch Archive