District attorney appeals controversial O.C. child molester sentence

District attorney appeals controversial O.C. child molester sentence
Orange County Supervisor Todd Spitzer, right, has denounced a 10-year sentence for a convicted child molester. (Mark Boster / Los Angeles Times)

The Orange County district attorney's office has appealed a judge's controversial decision to sentence a child molester to 10 years in prison rather than the minimum 25-years-to-life sentence set by law.

Meanwhile, county supervisors are working on a resolution that would denounce Superior Court Judge M. Marc Kelly for his ruling.


The 20-year-old was sentenced to 10 years in prison for molesting a 3-year-old girl who wandered into a garage where he was playing video games. The judge said that while the crime was "despicable," Kevin Rojano-Nieto did not fit the profile of a predator.

Kelly argued that, in this case, the minimum sentence would constitute "cruel and unusual" punishment, and so would be unconstitutional.

The judge's decision has landed him at the center of a firestorm. Three Orange County supervisors called on him to resign and thousands signed petitions condemning his actions.

During a press conference Thursday, Dist. Atty. Tony Rackauckas called the 10-year sentence "woefully inadequate."

While Kelly had tended to give "pretty stiff sentences" in years prior, he said his office did not believe the judge's decision in this instance was lawful.

Rackauckas said he would pursue the "legal remedy," but would not be involved in any politicking.

"It's not an easy issue, because we need a strong, healthy and independent judiciary, and one that is not afraid," he said. "The bench, I think, feels a general threat because of all this reaction to this decision."

Two days prior, county supervisors had considered a resolution to "formally denunciate" the judge for his decision.

Although two lawyers chastised the county leaders for meddling in the judicial system, the board voted unanimously to bring back the resolution for a final vote next week.

"I will never, ever apologize for standing up for a 3-year-old child who was taken advantage of by a 19-year-old man," Supervisor Todd Spitzer said after receiving the criticism. "That is, just, I'm not going to do it."

He nodded his head back and forth, repeating, "I'm not going to do it."

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