An Orange County Superior Court judge is being accused of taking the law into his own hands for cutting the sentence of a man convicted of sex crimes against a 3-year-old child. In a rare ruling, Judge M. Marc Kelly reduced the sentence of 20-year-old Kevin Jonas Rojano-Nieto from the mandatory 25-years-to-life to just 10 years in state prison.

Judicial discretion gone too far? WK Sex Crimes
Do you think Judge Kelly judge abused his judicial discretion?

Judge Kelly declared the mandatory minimum requirement to be “cruel and unusual” because he believes the punishment to be “grossly disproportionate to the defendant’s individual culpability” and that “there was no violence or callous disregard for (the victim’s) well-being.” 1 The judge also cited a doctor’s report that stated Rojano-Nieto was abused as a child, and as a result does not have the maturity level of the average person his age. He noted that the facts indicated that Rojano-Nieto also stopped the attack on the child “almost immediately and realized the wrongfulness of his act.”

Judge Kelly based his ruling on the premise that the facts indicate that Rojano-Nieto did not “stalk or seek out the victim” in this case. 2 Rojano-Nieto was shown to be in a garage playing video games when the victim wandered in. Rojano-Nieto then allegedly locked the garage and sexually assaulted the child. He was convicted on one felony count of sexual intercourse or sodomy with a child 10 years or younger (California Penal Code section 288.7) and one felony count of a lewd act upon a child under the age of 14 (California Penal Code section 288(a)).

The decision to reduce the penalty in this case has outraged many in Orange County. District Attorney Tony Rackauckas has already indicated that his office will appeal the judge’s decision, and three Orange County Supervisors have called for Judge Kelly’s recall.

The legal question is: Did the judge have the power to reduce a mandatory sentence?

A Judge’s Discretionary Authority in Sentencing

The law mandates that Rojano-Nieto’s crimes are punishable by a minimum of 25 years in prison. However, the Eighth Amendment to the U.S. Constitution prevents the federal government from imposing cruel and unusual punishment or excessive bails and fines. The Supreme Court has ruled that this applies to state governments as well. The federal constitution is the supreme law of the land, and when a state law conflicts with the constitution, the federal law controls the outcome of the case.

Mandatory minimums eliminate a judge’s ability to use his or her own judicial discretion, making case-specific information about both the crime and the defendant irrelevant. However, some crimes and criminals require a lower level of punishment because the mandatory sentence is out of proportion to the crime, or because it ignores facts about the case and the defendant that might provide an explanation for the behavior. Because mandatory sentencing does not always fit the circumstances of a case, judges in rare cases will dispense with these requirements.

From his ruling, it is clear that Judge Kelly believes Rojano-Nieto is one person for whom the mandatory minimum sentence is unfair. According to his view of the evidence, the prosecution did not prove that Rojano-Nieto sought or stalked the victim, which means that the attack was spontaneous and not planned, and is evidence of impulsive behavior that could be beyond the defendant’s ability to control. It is also clear that Judge Kelly viewed the doctor’s report on the defendant’s diminished mental acuity as a mitigating circumstance, placing Rojano-Nieto in a category of offenders for whom the mandatory punishment is unusually harsh in light of their reduced capacity.

Contact the Attorneys at Wallin & Klarich for Help With Your Case

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Very often, people who have difficulty controlling impulsive behavior find themselves facing criminal charges for acts that were beyond their control. If you or someone you care about is facing that kind of battle, we are here to help. At Wallin & Klarich, our skilled attorneys have been successfully helping clients fight criminal charges for over 30 years. We are dedicated to our clients and will work tirelessly on your behalf to provide you with the best representation possible. Contact us for a free, no obligation phone consultation.

With offices in Orange County, Los Angeles, San Bernardino, Riverside, Ventura, Victorville, West Covina, San Diego, Torrance and Sherman Oaks, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.


1. [Greg Mellen and Kelly Puente, “Pressure mounts on O.C. judge over sentence; county supervisors say they’re planning a recall,” The Orange County Register, April 10, 2015, available at http://www.ocregister.com/articles/kelly-657448-judge-sentencing.html.]
2. [ABC7.com Staff, “Orange County judge cuts 15 years off sentence for man who sodomized toddler,” ABC7 News, April 7, 2015, available at: http://abc7.com/news/orange-county-judge-cuts-15-years-off-sentence-for-man-who-sodomized-toddler/638845/.]

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