In a rare legal maneuver, an Orange County Superior Court judge on Friday deviated from a mandated 25-year-to-life sentence for a man who sexually assaulted a 3-year-old girl and sent him to prison for 10 years.
Kevin Jonas Rojano was convicted Dec. 3 of sodomizing a child younger than 10 and lewd or lascivious acts with a minor.
Rojano was playing video games in the garage of his home where he lived in Santa Ana June 4 of last year when a 3-year-old girl who he is related to wandered in to hang around, said Deputy District Attorney Whitney Bokosky. Rojano, who became sexually aroused by the child, pulled her pants down and assaulted her, Bokosky said.
The girl’s mother, meanwhile, tried to get into the garage as she looked for the child but realizing it was locked started looking elsewhere at a neighbor’s home, Bokosky said. This prompted the defendant, who had put his hands over the girl’s mouth to keep her from yelling for her mother, to have the child masturbate him, Bokosky said.
The defendant then unlocked the garage door and when the mother returned she took the girl, who appeared unharmed, into the home, Bokosky said. The crime came to light moments later in the kitchen when the girl complained of pain in her anus and the mother noticed it was torn, Bokosky said.
Rojano, 20, would normally be sentenced to a mandated 25 years to life term in prison, but Orange County Superior Court Judge M. Marc Kelly found that in this case that punishment would be unconstitutional.
Kelly agreed that under most circumstances the sentence would be appropriate.
“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. “Mr. Roiano did not seek out or stalk (the victim). He was playing video games and she wandered into the garage. He inexplicably became sexually aroused but did not appear to consciously intend to harm (the victim) when he sexually assaulted her.”
The defendant “almost immediately” stopped and “realized the wrongfulness of his act,” Kelly said.
“Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child,” Kelly said. “There was no violence or callous disregard for (the victim’s) well-being.”
The judge also noted the defendant “has shown extreme remorse for his actions and has been willing to accept the consequences,” Kelly said. “Mr. Rojano was born into and raised in a dysfunctional familiar environment.”
Pointing to a doctor’s report, the judge 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.”
Bokosky said Kelly should have taken into account the defendant attempting to quiet the girl during the attack and that he resumed it when he felt the coast was clear. The prosecutor said her office will discuss an appeal of the judge’s sentence.
— City News Service