10-year sentence for child sodomy leads to recall effort for judge who imposed it

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A California judge who refused to impose the mandatory minimum sentence in a case of child sodomy is facing a recall effort.

Three Orange County supervisors have joined the push to recall Judge M. Marc Kelly, who on April 3 sentenced a 20-year-old man to 10 years in prison for sodomizing a 3-year-old girl. A petition at change.org also seeks his ouster. The Washington Post, the Los Angeles Times and the Orange County Register have stories.

Kelly refused to impose the mandatory minimum sentence of 25 years in prison, saying it would be cruel and unusual punishment in the case. Kelly said the defendant, Kevin Jonas Rojano-Nieto, “didn’t intend to harm” the child, who wandered into the garage where Rojano-Nieto was playing video games.

Kelly said Rojano-Nieto had been “raised in a dysfunctional familiar environment,” making him an “insecure, socially withdrawn, timid, and extremely immature young man with limited self-esteem,” according coverage by City News Service.

“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, and he stopped “almost immediately” when he “realized the wrongfulness of his act,” Kelly said.

“Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child,” Kelly said.

Orange County District Attorney Tony Rackauckas said he plans to appeal the sentence.

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