Judge's Lenient Sentence for Toddler Rapist Illegal, Says District Attorney

Orange County's top prosecutor told City News Service today he intends to appeal the 10-year prison term given to a 20-year-old man who sexually assaulted a 3-year-old girl -- a sentence that has drawn angry calls for the recall of the judge who handed it down.

The mandatory minimum under state law for the sexual assault would have been 25 years to life and the maximum would be 33 years to life in prison. Orange County Superior Court Judge M. Marc Kelly, however, ruled it would be cruel and unusual punishment and, therefore, unconstitutional to sentence Kevin Jonas Rojano-Nieto to either of the life sentences in this case.

"I plan to appeal it," District Attorney Tony Rackauckas told City News Service. "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 disagreed with the judge'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."

Criminal defense attorney and former prosecutor Mary Ann Bird, who has defended many cases of sexual deviance, also disagrees with the judge's rationale and sentencing.

"The molestation of a child is a crime of opportunity," Mary Ann Bird told Patch. "Clearly, when the 3-year-old child wandered into the garage, the opportunity presented itself, and he took advantage of it."

Bird believes the sentence given to Rojano-Nieto was illegal, according to the California Penal Code. Read More