Judge told to impose longer sentence in child sex attack

AP News
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Posted: Jan 31, 2017 9:55 PM

SAN DIEGO (AP) — An Orange County judge who imposed less than half the mandatory sentence on a man who sodomized a 3-year-old girl was told Tuesday to resentence him.

California's 4th District appellate court ruled that Kevin Rojano-Nieto should spend 25 years to life in state prison. A resentencing date was not immediately set.

Nieto, then 19, was convicted in 2014 of sodomizing the girl, a relative who had wandered into the garage of his Santa Ana home where he was playing video games.

Rojano-Nieto was arrested that day and later confessed, telling police that the sodomy lasted for "five seconds."

His lawyer said Rojano-Nieto, who had no criminal record, suffered from psychological issues stemming from growing up in a dysfunctional and abusive family.

In 2015, Orange County Superior Court Judge Michael Marc Kelly sentenced him to 10 years in prison rather than the state-mandated term.

In an analysis, Kelly said he compared sentencing for similar and other offenses, looked into details of the case and took into account a court-ordered psychological examination and a sentencing report that concluded Rojano-Nieto wasn't a true pedophile or sexual predator and wouldn't pose a danger to society.

The mandatory term would be "grossly disproportionate" in the case and would be unconstitutionally cruel and unusual, Kelly wrote. "The manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," he wrote.

Although he acknowledged the act was "serious and despicable," Kelly said Rojano-Nieto stopped the assault within seconds and was remorseful, the girl wasn't seriously injured and her parents had urged leniency.

The sentence outraged victims' rights groups, prompted Orange County supervisors to urge Kelly to resign, and sparked an unsuccessful recall drive.

In its ruling, the appellate court said Kelly ignored "important undisputed evidence about the entire scope of Rojano's actions."

"Violent physical injury is not what makes the crime of sodomy against a young child a serious and horrific crime," the court said. "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."

"Even an extremely immature 19-year-old should understand that it is wrong to sodomize a three-year-old child and should be able to control his sexual impulses," the ruling stated.

An email seeking comment from Rojano-Nieto's trial lawyer, Erfan Puthawala, was not immediately returned.

Orange County District Attorney Tony Rackauckas praised the decision. "This was a good day for child victims of brutal sex assaults and the People of Orange County," he said in a statement.