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OC DA To Appeal Lightened Sentence For Man Judge Said Didn't Mean To Rape 3-Year-Old Girl

SANTA ANA ( — The shortened sentence for a man who a judge said didn't mean to sexually assault a 3-year-old girl will be appealed, Orange County's top prosecutor said Wednesday.

Rather than adhere to the mandatory minimum sentence of 25 years to life or the maximum of 33 years to life for sexual assault, Orange County Superior Court Judge M. Marc Kelly ruled that it would be cruel and unusual punishment and, therefore, unconstitutional to sentence Kevin Jonas Rojano-Nieto to either of the life sentences in this case.

"I plan to appeal it," District Attorney Tony Rackauckas said. "We still have to wait for the transcripts (of Friday's sentencing hearing), but everything about the case indicates it's clearly an illegal sentence and one that is appealable."

Kelly's decision to sentence Rojano-Nieto to a 10-year prison term sparked widespread outrage Friday. A petition calling for a recall of Kelly, launched by a Chicagoan on, has received thousands of signatures and a Facebook page calling for his removal from the bench has more than 5,000 likes, as of Wednesday.

But any sort of recall effort would be difficult. Organizers would need to collect "just shy" of 90,000 signatures from registered voters in Orange County in 160 days, according to Orange County Registrar of Voters Neal Kelly.

Rojano-Nieto was convicted Dec. 3 of sodomizing a child younger than 10 and lewd or lascivious acts with a minor. He was playing video games in the garage of his Santa Ana home last June 4, when the 3-year-old victim, who is a relative, joined him, Deputy District Attorney Whitney Bokosky said. Rojano then sexually assaulted her.

The victim's mother, who was looking for the girl at the time, went to see if she wandered over to the garage, but the door was locked. The mother then went to a neighbor's home to check there and then returned to the garage. But by then, the defendant had unlocked the door, and she took her daughter back into the home, the prosecutor said.

Rojan-Nieto put his hands over the girl's mouth to keep her quiet when her mother initially came to the garage and found the door locked, Bokosky said.

The sexual assault came to light when the girl complained of pain in her anus and the mother noticed tearing, Bokosky said.

In his ruling, Kelly said "the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case" and that the defendant "did not seek out or stalk (the victim)," and that he "inexplicably became sexually aroused but did not appear to consciously intend to harm (the victim) when he sexually assaulted her."

The judge agreed with defense attorney Erfan Puthawala that "in an instant, he (the defendant) reacted to a sexual urge and stopped almost immediately after he put his penis in (the victim's) anus. Within seconds of commencing his offense, he realized the wrongfulness of his act and stopped without ejaculating. Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child. There was no violence or callous disregard for (the victim's) well being."

(©2015 CBS Local Media, a division of CBS Radio Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. Wire services contributed to this report.)

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