A convicted child molester whose 10-year prison sentence for sodomizing a 3-year-old relative in Santa Ana sparked local outrage and international headlines was re-sentenced Friday to 25 years to life behind bars.
Kevin Jonas Rojano-Nieto, 23, was re-sentenced on the orders of the state's 4th District Court of Appeal.
The defendant's cousin, Yesica Ramirez, told Orange County Superior Court Judge M. Marc Kelly, "I know you guys have a job to do. You're not the enemy."
To her cousin, she said, "We love you ... You're always going to have us."
The defendant's mother said, "I love Kevin as I love all my children," adding that she was "extremely happy he has allowed God into his heart" while in custody.
Judith Nieto described her son as "kindhearted and loving by nature ... Kevin is a good person who has endured childhood trauma. I'm not justifying what he did. He knows it was wrong. He told me. It was, perhaps, something he didn't think about."
She implied that her son was sexually abused as a young child, as did his attorney.
"He went through something similar and he doesn't want to talk about it," Nieto said.
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Her son lived for a time with his father in Texas, and "nobody from his family was around to help him" through his childhood trauma, his mother said.
Defense attorney Melani Bartholomew battled back tears as she spoke on behalf of her client, who she said was "too nervous" to make a statement to the judge but "would like to express the deepest remorse. It's no excuse, but he suffered unspeakable abuse" as a child, she said.
Bartholomew said her client is an "exemplary person" who was failed by his family and then his prior attorney at his trial. She argued the defendant might have had a better chance at a lesser sentence if the court record included allegations that he was sexually abused and subjected to all sorts of other abuse such as "being fed until he vomited and then fed the vomit."
"His trauma mitigates his actions," Bartholomew said.
Senior Deputy District Attorney Whitney Bokosky told reporters following the hearing, "Obviously, I have compassion for victims, but that doesn't let you go on to be a perpetrator. As sad as it is what happened to Kevin, he's still a predator."
Kelly, who said he hoped the family would gain some sort of "closure" to the matter now, fueled outrage three years ago when he sidestepped the state-mandated punishment for the defendant. A recall effort against the judge ultimately failed when organizers could not get enough signatures to get it on the ballot in June of last year.
Kelly's statements during the first sentencing hearing on April 3, 2015, sentencing also drew the ire of Orange County supervisors.
"He (Rojano-Nieto) was playing video games and she (the victim) wandered into the garage," Kelly said then. "He inexplicably became sexually aroused but 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."
The appellate justices rejected Kelly's argument that a life sentence would violate the state and federal constitutions regarding cruel and unusual punishment. The panel cited a state Supreme Court ruling in which a 17-year-old's first-degree murder conviction for a shooting during a marijuana farm robbery was knocked down to manslaughter.
Unlike the defendant in the marijuana robbery, Rojano-Nieto was not a juvenile and he did not commit his crime due to a panicked impulse, the justices noted.
"Rojano consciously decided to sexually molest (the victim), as shown by the fact that he locked the garage door, promised to buy her Cheetos, sodomized her and then decided to have her masturbate him," according to the ruling penned by Associate Justice Joan Irion.
And although the girl did not sustain serious physical injury, it would not be right to argue, as Kelly did, that her general well-being since the attack and lack of physical trauma weighed in the defendant's favor, the justices found.
"Put simply, a sex offense against a small child is a grave offense because of the vulnerable nature of the victim and the risk of psychological harm to the child, regardless of any associated physical injury," Irion wrote.
The justices, unlike Kelly, were not swayed by the defendant's show of remorse during the trial, noting that he continued to molest the victim after the sodomy and did not express remorse right away.
"Instead, Rojano denied his actions to his mother, and he also refused to admit the molestation during the police interview until after he was confronted with the fact of (the victim's) injuries," Irion wrote.
