Three of the five members of the Orange County Board of Supervisors said Thursday they will lend their political and fundraising muscle to an effort to recall local Superior Court Judge M. Marc Kelly — if he ignores their call to resign — for his ruling that deviated from a state- mandated minimum 25-years-to-life sentence for a man convicted of sexually assaulting a 3-year-old relative.
Orange County Board Chairman Todd Spitzer, joined by supervisors Lisa Bartlett and Shawn Nelson, called on Kelly to resign at a news conference in front of the Central Justice Center in Santa Ana. If he does not step down, they will do what they can to get him ousted from his courtroom, they said.
Nelson predicted that the earliest a recall election could be held would be in March of next year.
“We’re all upset and rightly so, but this is no sprint,” Nelson said.
The mandatory minimum sentence under state law for the sexual assault would have been 25 years to life. However, Kelly ruled it would be cruel and unusual punishment and, therefore, unconstitutional to sentence Kevin Jonas Rojano-Nieto to a life sentence.
Bryan Scott, organizer of an effort to recall Kelly, said the Facebook page he started to call for Kelly’s ouster is “10,000 likes strong,” and he encouraged his supporters to maintain their passion through next year if the judge does not step down willingly.
Scott said he believes Kelly’s ruling will lead to a “ripple effect” that prompts other defendants to use the opinion to argue for lesser sentences.
Bartlett called it an “unconscionable ruling,” and characterized it as “illegal.” Bartlett also called Kelly an “activist” judge, “who must have forgotten his job is to protect the victim, not the predator.”
Spitzer, who is an attorney who led the fight for a constitutional amendment giving victims more rights in criminal trials, said he already has received $15,000 in pledges to help finance the recall — all of which were unprompted. Nelson, who is also an attorney, said he would lend his legal expertise to the recall effort.
A recall would require about 90,000 signatures from registered voters that have to be collected in 160 days, according to Orange County Registrar of Voters Neal Kelley. Nelson said many more thousands of signatures will be needed because there are always people who are not qualified to sign petitions.
Nelson brushed off concerns about a chilling effect on judges in Orange County, saying he wasn’t going after a jurist who issued a ruling he disagreed with but a judge who handed down what he believes is an illegal sentence.
Referring to the “honorable” in a judge’s title, Spitzer said Kelly no longer deserves that. Spitzer lambasted Kelly for “making the law” instead of following it.
Orange County District Attorney Tony Rackauckas sidestepped questions about recall efforts in an interview with City News Service Wednesday, explaining it was more appropriate for him to seek “legal remedies” through the appellate court. He told City News Service 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.
Rackauckas disagreed with Kelly’s ruling that he had the authority to deviate from the state-mandated punishment in the case.
“It’s mandatory language in that section” of the law,” Rackauckas said. “So that indicates there is no discretion… We disagree with the ruling vehemently and our remedy is to appeal. We expect this will be reversed on appeal.”
In handing down his ruling, Kelly said he considered the general principles of sentencing, which include “protecting society, punishing the defendant, encouraging the defendant to lead a law-abiding life and deter him from future offenses, deterring others from crime by demonstrating its consequences, preventing the defendant from committing new crimes by isolating him with incarceration.”
Kelly went on to say that sentencing “is the most difficult part of a trial judge’s job … It is not an easy task and there are often no bright-line answers to what constitutes a fair and appropriate sentence.”
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.
“Sodomy of a 3-year-old child is a horrific crime, and imposition of harsh punishment will ordinarily not give rise to constitutional concerns,” he said.
“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 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.”
Kelly agreed with defense attorney Erfan Puthawala that “in an instant, he (the defendant) reacted to a sexual urge and stopped almost immediately after he put his penis in (the victim’s) anus. Within seconds of commencing his offense, he realized the wrongfulness of his act and stopped without ejaculating.
“Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child. There was no violence or callous disregard for (the victim’s) well being.”
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, Kelly 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.”
Kelly was also moved by the support of the defendant’s parents. He allowed them 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 when she testified in the trial, she appeared to be a “happy, healthy child.”
“It is hard to gauge how this crime might affect her mental state in the future, but she did not suffer serious violent physical injuries, and by all counts she appears to be headed for a normal life.” the judge said. “It is the court’s hope that she has fully recovered from this incident.”
The defendant’s parents requested probation in the case, but Kelly said it was necessary that Rojkano-Nieto be “punished severely for his conduct.”
Kelly is a former prosecutor who has been a judge since 2000. He was a basketball standout at Crescenta Valley High School in La Crescenta in the 1970s, a non-scholarship player at Notre Dame and played professionally in Ireland.
—City News Service