In December, a jury convicted 20-year-old Kevin Jonas Rojano-Nieto of sexually assaulting a 3-year-old girl. In California, that charge comes with a minimum sentence of 25 years to life.
But in a surprise ruling, an Orange County judge has said that the sentence was too harsh. So instead, Rojano-Nieto will serve a 10-year prison sentence.
Despite the fact that Rojano-Nieto was convicted of crimes against a toddler — at one point covering the girl’s mouth so her mother couldn’t hear her cries — Orange County Superior Court Judge M. Marc Kelly said on Friday that Rojano-Nieto didn’t intend to harm the girl, according to the City News Service:
“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. Rojano 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.
The judge went on to blame Rojano-Nieto’s own “dysfunctional” upbringing for his “inexplicable” assault on the child.
He noted that Rojano-Nieto’s life had featured “family disruption” that made him “an insecure, socially withdrawn, timid, and extremely immature young man with limited self-esteem.”
Rojano-Nieto, according to judge Kelly, wasn’t behaving like a typical “pedophilic child predator.” And Kelly added that the crime didn’t constitute violence against the child.
“There was no violence or callous disregard for (the victim’s) well-being,” he said.
Here, it’s important to review the facts of the case, according to prosecutors.
As the judge noted, the girl wandered into a garage where Rojano-Nieto was playing video games on June 4, 2014. Rojano-Nieto — to whom the girl is related, according to City News Service — became sexually aroused, pulled down the girl’s pants and began sodomizing her.
Her mother tried to get into the garage looking for her daughter, but Rojano-Nieto had locked the door. Rojano-Nieto had also put his hand over the child’s mouth to prevent her from calling out for help, prosecutors say.
When the child’s mother left to look for her daughter at a neighbor’s house, Rojano-Nieto made the girl fondle him. He then unlocked the door, and the child went back into the house. It wasn’t until she started complaining of pain that her mother realized that something terrible had occurred.
Orange County Deputy District Attorney Whitney Bokosky noted that Kelly didn’t take into account that Rojano-Nieto not only tried to smother the girl’s cries but also resumed abusing her when the girl’s mother went away.
The terms sexual assault, rape and sexual violence have different legal meanings in different jurisdictions — not to mention different meanings, depending on who you’re talking to.
In California, a crime that is considered sexual assault includes rape, child molestation, sodomy and incest. Both the Centers for Disease Control and Prevention and advocacy groups consider the broad term “sexual violence” to be virtually synonymous with sexual assault, indicating that an unwanted sexual attack — especially against a minor — is considered to be an act of violence.
But Kelly, the judge, ruled that sentencing Rojano-Nieto to 25 years in prison or longer would violate his constitutional rights. A spokeswoman for the Orange County prosecutor said they are considering appealing the ruling.
“It was a surprise and we sent out a media advisory because of that,” said spokewoman Roxi Fyad.
And already there is a Facebook group dedicated to recalling Kelly in response to the ruling. Kelly, a former University of Notre Dame basketball player, has served as a Superior Court Judge since 2000.