Prosecutors says appeal of child molester sentence established Legislature’s rights

Prosecutors who succeeded on appeal in turning a child molester's 10-year sentence into 25 years to life, overturning a case in which the judge said he was exercising his independence, said it was crucial to establish that the Legislature has the authority to set mandatory minimum sentences.

Orange County Superior Court Judge M. Marc Kelly, who had faced a recall attempt after giving child molester Kevin Rojan-Nieto a sentence 15 years under the statutory minimum in 2015, imposed the longer sentence Friday in his Newport Beach courtroom, under direction from the 4th District Court of Appeal.

"Sodomizing a 4-year-old is obviously a heinous crime," Orange County District Attorney Tony J. Rackauckas said, after the resentencing hearing. He said his office "rightfully pursued the life sentence to make sure this defendant received the mandatory 25 years to life."

Deputy District Attorney Matthew V. Lockhart said it was crucial to pursue an appeal in the case because Kelly had departed from the mandatory minimum sentence.

Kelly had said that he was making an independent judicial ruling that 25 years to life was unconstitutionally cruel and unusual punishment for the then 19-year-old perpetrator, and made supporting comments that the molester "did not appear to consciously intend to harm [the victim] when he sexually assaulted her. ... There was no violence or callous disregard for [the victim's] well-being."

"But we appealed because our position was the Legislature has the power to set punishment for crimes and that this was reasonable," said Lockhart, who won the appeal last year. "The appellate court found the Legislature's mandatory sentence for forced sodomy was not violative of the Constitution."

Both victim and perpetrator were from the same family, information which was placed under seal by the trial court, which the appellate court preserved.

"There was a great deal of sealed information that was plainly important to Judge Kelly when he imposed his original sentence," said Lawrence Rosenthal, professor at Chapman University School of Law.

The appellate court said in its ruling that Kelly had overlooked several aspects of the crime, including that Rojan-Nieto locked a garage door to keep the victim inside, committed other sexual acts with her after the sodomy, and lied about it until police presented him with evidence of the child's injuries.

"Had the appellate court affirmed Kelly, this would have been a terrifically important precedent limiting the ability of legislatures to mandate long sentences in cases like this," said Rosenthal. "But the appellate court didn't do that. That makes this case fall in with the vast majority of cases, and it turns out to be a routine example of a very tough mandatory minimum sentence being sustained under constitutional attack."

Because the appellate court reversed Kelly's decision, Rosenthal said, the case isn't going to be a novel precedent. "It goes to the court's willingness to give extreme deference to the Legislature's authority."

Friday's hearing included emotional testimony from Rojano-Nieto's family about abuse they said the defendant suffered as a child. Deputy Public Defender Melani Bartholomew described to Kelly examples of abuse and said the convict's "hope, good character and optimism defies explanation."

"Everyone that was there to protect him failed, and then he was tragically failed by his private counsel, because he did not investigate or litigate anything," Bartholomew said, referring to sole practitioner Erfan A. Puthawala.

Puthawala did not return a phone call Friday seeking comment.

Lockhart responded to Bartholomew's plea by saying, "There was a lot of talk today about Mr. Nieto and how he was abused. What was forgotten in this is there's a victim who had an older brother she thought she could trust, who violated her in a profound way."

The San Diego-based appellate panel's unpublished 3-0 reversal and remand last year was written by Justice Joan K. Irion and concurred with by Justices Gilbert Nares and Patricia D. Benke. It concluded Rojano-Nieto's case "is not one of the exquisitely rare cases in which the California Constitution requires a reduction in punishment." People v. Rojano-Nieto, D070919 (Cal.App.4th, Jan. 31, 2017).

In February 2016, Kelly was reassigned and now works on the post-conviction panel at the Harbor Justice Center in Newport Beach.

Staff Writer Meghann Cuniff contributed to this report.