NEWPORT BEACH (CBSLA.com) — A Santa Ana man who was given a shortened sentence after being convicted of sexually assaulting a 3-year-old girl, prompting nationwide outrage and a recall effort for the judge, was re-sentenced Friday in a Newport Beach courtroom.
Twenty-three-year-old Kevin Jonas Rojano-Nieto was re-sentenced Friday in Orange County Superior Court to 25 years to life in prison.
In April of 2015, O.C. Superior Court Judge M. Marc Kelly sentenced Nieto to 10 years in prison instead of the mandatory minimum of 25 years to life for sodomizing a relative. In his ruling, Kelly said “the man has not meant to harm the little girl.”
In December of 2014, Nieto was convicted of sodomizing a child younger than 10 and lewd or lascivious acts with a minor. He was playing video games in the garage of his Santa Ana home when the 3-year-old victim, who is a relative, joined him. Rojano then sexually assaulted her.
Rather than adhere to the mandatory minimum sentence of 25 years to life or the maximum of 33 years to life for sexual assault, Kelly ruled that it would be cruel and unusual punishment and, therefore, unconstitutional to sentence Nieto to either of the life sentences in this case.
The O.C. District Attorney’s Office appealed the sentence, which was reversed by the Fourth Appellate District in San Diego in January of 2017. The appellate court ordered Kelly to re-sentenced Nieto.
Defense attorney Melani Bartholomew battled back tears Friday as she spoke on behalf of her client, who she said was “too nervous” to make a statement to the judge but “would like to express the deepest remorse. It’s no excuse, but he suffered unspeakable abuse” as a child, she said.
Bartholomew said her client is an “exemplary person” who was failed by his family and then his prior attorney at his trial. She argued the defendant might have had a better chance at a lesser sentence if the court record included allegations that he was sexually abused and subjected to all sorts of other abuse such as “being fed until he vomited and then fed the vomit.”
“His trauma mitigates his actions,” Bartholomew said.
Senior Deputy District Attorney Whitney Bokosky told reporters following the hearing, “Obviously, I have compassion for victims, but that doesn’t let you go on to be a perpetrator. As sad as it is what happened to Kevin, he’s still a predator.”
Judge Kelly, who said he hoped the family would gain some sort of “closure” to the matter now.
Kelly’s lighter sentence back in 2015 sparked widespread outrage. A petition calling for a recall of Kelly received more than 83,000 signatures on Change.org, and a Facebook page calling for his removal from the bench has more than 18,000 likes.
Kelly was critical of the recall effort, calling it “an attack on judicial independence.”
The effort failed, however.
In his ruling, Kelly said, “the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case” and that 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.”
When the 3-year-old took the stand and testified, Judge Kelly said she appeared happy and healthy.
“It doesn’t appear she suffered any serious violent physical injuries, and by all accounts, she appears headed for a normal life,” Kelly wrote.
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.
And 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, the justices found.
“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.
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