SANTA ANA (CBSLA.com) — Orange County officials joined an effort Thursday calling for the resignation of a Superior Court judge who gave a man convicted of sexually assaulting a 3-year-old girl a sentence less than half the legal minimum.
During a sentencing hearing Friday, Superior Court Judge M. Marc Kelly ruled that it would be cruel and unusual punishment and therefore unconstitutional to sentence Kevin Jonas Rojano to either of the life sentences in this case.
Rojano was convicted Dec. 3 of sodomizing a child younger than 10 and lewd or lascivious acts with a minor.
Prosecutors say Rojano was playing video games in the garage of his Santa Ana home last June 4, when the 3-year-old victim, who is a relative, joined him. Rojano then sodomized and sexually assaulted her, according to prosecutors.
Bryan Scott, founder of RemoveJudgeKelly.com, was joined by county Supervisors Todd Spitzer, Shawn Nelson and Lisa Bartlett at a news conference Thursday afternoon to call for Kelly’s resignation.
Spitzer, Nelson, and Bartlett, who make up three of the five members of the Orange County Board of Supervisors, said they would lend their political and fundraising muscle to the recall effort.
Orange County District Attorney Tony Rackauckas announced Wednesday 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.
“Sodomy of a 3-year-old child is a horrific crime, and imposition of harsh punishment will ordinarily not give rise to constitutional concerns,” Kelly said during Friday’s hearing. “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 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.
The judge cited a doctor’s report that stated Rojano suffered “a great deal of family disruption and abuse, making him an insecure, socially withdrawn, timid and extremely immature young man with limited self-esteem.”
In a somewhat unusual move, Kelly also allowed the defendant’s parents 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 noted that she appeared to be a “happy, healthy child” when she testified in the trial.
At a news conference Thursday outside the courthouse, Patricia Wenskunas, founder of Crime Survivors, was flanked for the supervisors.
She lashed out at Kelly.
“We need to not forget that 3-year-old,” she said, “[Judges] are not here to play God. They are here to go by what the law says. What the rules are. What happened to justice?”
Experts say any sort of recall effort would be difficult. Organizers would need to collect about 90,000 signatures from registered voters in Orange County in 160 days, according to Orange County Registrar of Voters Neal Kelley.
Kelly has not made a statement since he made the controversial ruling.
(©2015 CBS Local Media, a division of CBS Radio Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. Wire services contributed to this report.)