Re-sentencing of a Santa Ana man who sparked international headlines when the judge deviated from state law to reduce his punishment for sodomizing a 3-year-old relative to 10 years was delayed Friday as court officials try to get the defendant’s attorney to continue representing him.
Kevin Jonas Rojano-Nieto, 21, was scheduled to be sentenced to 25 years to life as ordered by the Fourth Appellate District in San Diego. But his attorney, Erfan Puthawala, was a no-show and has indicated he wants nothing to do with the case anymore.
Rojano-Nieto told Orange County Superior Court Judge M. Marc Kelly, who fueled outrage two years ago when he sidestepped the state-mandated punishment for the defendant, that his aunt told him in jail that she was trying to raise enough money to re-hire Puthawala.
A message left with Puthawala was not immediately returned.
Attorney Seth Bank of the Orange County Public Defender’s Office appeared on behalf of the defendant at Friday morning’s hearing, but said his office wanted Kelly to produce, at the court’s expense, transcripts for all of the trial proceedings in the case. Senior Deputy District Attorney Whitney Bokosky objected, arguing that the appellate court ruling was clear that the defendant must be sentenced to 25 years to life so there is no need for further delays.
The sentencing was put off for a week in the hopes that Puthawala could be convinced to come to court and represent his client for the hearing, Bokosky said.
The state Supreme Court in May rejected an appeal.
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.
—City News Service