A 23-year-old convicted child molester whose 10-year prison sentence sparked international headlines is scheduled to be re-sentenced Friday to a life term mandated by an appellate court ruling.
Kevin Jonas Rojano-Nieto is expected to be sentenced to 25 years to life as ordered by the Fourth Appellate District in San Diego.
Orange County Superior Court Judge M. Marc Kelly fueled outrage three years ago when he sidestepped the state-mandated punishment for the defendant.
Kelly’s original 10-year sentence for the defendant in April 2015 prompted a recall effort against the judge that ultimately failed when organizers could not get enough signatures to get it on the ballot in June of last year.
Kelly’s statements during the April 3, 2015, sentencing drew the ire of Orange County supervisors and organizers behind the recall effort.
“He was playing video games and she (the child) wandered into the garage,” Kelly said. “He 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.”
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.
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.
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