The convicted child molester whose original sentencing — shorter than what is required by state law — provoked public backlash was resentenced to the mandatory minimum of 25 years to life in state prison on Friday.
Kevin Rojano-Nieto, 23, was facing a maximum of 33 years to life when he was found guilty of sodomizing a 3-year-old relative in Santa Ana in 2014, when he was 19 years old. But Judge M. Marc Kelly said that sentence would be "cruel and unusual punishment" given the circumstances of the case.
In reversing Nieto's 10-year sentence, a court of appeals found the trial judge ignored vital evidence about the scope of Nieto's actions, the Orange County District Attorney's Office said in a news relase. DA's officials also characterized the previous sentence as "illegal" and said Nieto was unable to prove that the minimum sentence was grossly disproportionate to his crime.
Prosectors say that Nieto was in a detached garage playing video games when his young family member walked in, and Nieto became sexually aroused. He then locked the door and sexually assaulted her, covering her mouth so her mother could not find her.
After the girl was freed, she told her mother she was in pain, and a medical exam revealed injuries consistent with assault, including lacerations on her anus, officials said.
The DA's office, which appealed the original sentence, calls it an "obviously a heinous crime."
But Judge Kelly had originally found that "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)…"
He said that though he found Nieto's actions "serious and despicable," he did not find the man to be "a pedophiliac child predator (who) preys on an innocent child." He also noted that an independently appointed psychologist found that Rojano posed a low risk for recidivism.
Three Orange County supervisors called for judge's resignation and threatened a recall campaign. An online petition on Change.org and a Facebook page were also set up calling for Kelly to step down following the decision. But Kelly's name still appears on the California court system's judges roster.
In Friday's ruling, the appeals court found Kelly minimized the severity of the crime by "characterizing it as happening ‘in an instant’ and stopping ‘within seconds’ when Rojano ‘realized the wrongfulness of his act.’"
Nieto originally denied committing the crime, first to the victim's family and then to police, prosecutors said.
Court documents obtained by KTLA in 2015 revealed Kelly's decision may have been influenced by the wishes of the 3-year-old victim's parents. A victim impact statement submitted by her father argued that Nieto "understands the gravity of his actions and that he laments his mistakes," and had endured childhood trauma himself.
"He requires rehabilitation that focuses on psychological healing as a preventive measure, and not solely on retribution," the statement read.
Family members spoke again in court on Friday, and his mother Maria Rojano said she forgave him.
“He was always my perfect little boy. Always his clothes organized, room organized, ‘yes ma’am,’ ‘I love you mom,’ and something happened,” she said.
But during the appeal process, Nieto was unable to prove there were circumstances that made a reduction of the sentence required by state law reasonable.
“There is no credible evidence that Rojano-Nieto did not have callous disregard for, nor lacked the intent to harm three-year-old Jane Doe when he sodomized and molested her; neither is it relevant to the inquiry," the DA's office said in a brief. "Moreover, there is no evidence supporting the trial court’s finding that Jane Doe was not harmed by the serious and violent assaults the defendant committed on her."
Nieto has already spent 1,404 days — nearly four years — in jail, meaning he will be eligible for parole in about 21 years. When and if he does apply, the parole board will have plenty of information to evaluate, Deputy District Attorney Whitney Bokosky told KTLA.
"The defense was very diligent in gathering all the information from his past, his school records, of the alleged abuse — all that," she said. "So the parole board will be educated when they do make that decision."
Nieto has 60 days to appeal Friday's ruling, but Bokosky said he appeared to be coming to terms with his sentence.
"It’s a case that’s hit all of us, emotionally, pretty hard, but I think he did know that he did have to give the 25 to life," she said.