Orange County Seal

Orange County officials Thursday called for the resignation of a superior court judge who cut 15 years off the minimum 25 year sentence of a man convicted of sodomizing a 3-year-old girl.

By Emily Foxhall
April 9, 2015

In more than 15 years on the bench, Orange County Superior Court Judge M. Marc Kelly said, he had never run into a case like the 19-year-old child molester facing a minimum 25-year prison term.

A jury had convicted Kevin Rojano-Nieto of sodomizing a 3-year-old girl who had wandered into a garage where he was playing video games, and the judge conceded the crime was despicable.

But Kelly said he wrestled with the case and finally decided that giving Rojano-Nieto such a sentence — even though it was the mandatory minimum sentence under state law — would be “cruel and unusual punishment.”

So he gave him 10 years instead.

The judge’s decision has landed him at the center of a growing firestorm. On Thursday, three Orange County supervisors called on him to resign, thousands signed petitions condemning his actions and conservative talk show hosts revised their programming to discuss the case and news blog.

Orange County Dist. Atty. Tony Rackauckas, meanwhile, said he plans to appeal the sentencing.

More than 50,000 names have so far been added to a petition calling for his resignation, and a Facebook page titled Remove Judge M. Marc Kelly From the Bench page had thousands of likes.

“He must have forgotten that his job is to protect the victim, not the perpetrator,” Supervisor Lisa Bartlett said at a Thursday afternoon news conference, describing the decision as “an unconscionable ruling” by an “activist judge.”

News of the reduced sentence caused other victims to remember their mistreatment at the hands of judges, said Patricia Wenskunas, founder and chief executive officer of Crime Survivors Inc.

“It is not right, it is not just, and we will not stand for it,” she said.

Gesturing toward the towering court building behind them, Supervisor Todd Spitzer said Kelly had overstepped the bounds required of Superior Court judges by making law instead of following it.

If Kelly does not resign, he said, the judge could be recalled.

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