Supervisors Seek Resignation Of OC Judge For Reduced Sex Assault Sentencing

(FOX 11 / CNS) Three Orange County supervisors are expected today to call for the resignation of Superior Court Judge M. Marc Kelly for giving a man who sexually assaulted a 3-year-old girl a sentence less than half the legal minimum.

The judge found that the defendant sodomized the toddler but that it could have been worse.

The mandatory minimum sentence under state law for the sexual assault would have been 25 years to life. However, Kelly ruled it would be cruel and unusual punishment and, therefore, unconstitutional to sentence Kevin Jonas Rojano-Nieto to a life sentence.

Bryan Scott, organizer of an effort to recall Kelly, is scheduled to be joined at an afternoon news conference where Supervisors Todd Spitzer, Shawn Nelson and Lisa Bartlett will call for Kelly's resignation.

Orange County District Attorney Tony Rackauckas told City News Service his office intends to appeal the sentence.

"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 said.

Rackauckas disagreed with Kelly'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."

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 requiring a deviation from the state mandates.

"Sodomy of a 3-year-old child is a horrific crime, and imposition of harsh punishment will ordinarily not give rise to constitutional concerns," he said.

"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."

Kelly 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, Kelly 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."

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 is a former prosecutor who has been a judge since 2000. He was a basketball standout at Crescenta Valley High School in La Crescenta in the 1970s, a non-scholarship player at Notre Dame and played professionally in Ireland.

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