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 Change.org 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.


Kelly, who declined to comment Thursday, said during Rojano-Nieto’s sentencing that he saw the defendant as being “extremely remorseful” and that a prison term stretching a quarter of a century would be “grossly disproportionate,” according to court transcripts.

The judge said statements had shown that Rojano-Nieto was not a sexual predator but a confused young man raised in a fractured family.

The young man, he said, had “inexplicably became sexually aroused” when the girl wandered into the garage but never intended to harm the child, a relative. He said Rojano-Nieto did not fit the classic definition of a predator.

He also said the girl now “appears to be a happy healthy child.”


“So it’s hard to gauge how this crime may affect her mental state in the future,” he said. “It certainly may, but I hope it does not. It doesn’t appear she suffered any serious violent physical injuries, and by all accounts she appears headed for a normal life.”

At the time of the crime, Rojano-Nieto was working as a grocery store bagger and lived in a Santa Ana home with at least five other children, according to court documents. A high school graduate, he told the court he had aspirations of joining the military.

“It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place,” a relative of both the girl and defendant wrote in a statement that her husband read to the court during a hearing in February.

“It has rocked the very foundation of my family to the core.”


Rojano-Nieto, who is now 20, also spoke before he was sentenced.

“Despite my actions and what people might say about me, that is not what is in my heart. Regardless about what people say about me, that is not who I am.”

Times staff writer Veronica Rocha contributed to this report.