December 8, 2010 | 8:38am
Make no mistake: M. Marc Kelly is usually a tough and decent Orange County superior court judge, unless the guilty defendant is a dirty cop and then Kelly goes softer than an ACLU lawyer high on a dose of Ecstasy.
But Kelly also thought that he'd given a break to 5-foot-11, 315-pound Jaime Miguel Morgutia, Jr., who isn't a cop or a role model.
You may have heard Morgutia while stopped at a traffic intersection. Police have twice cited him him for playing his car radio exceptionally loud. Perhaps he should try a new MO: stealth.
In March 2007, a 17-year-old Morgutia committed gang-related vandalism and then attempted to evade police by recklessly driving 60-mph down residential streets, ignoring stop signs and crashing into a car, according to court records.
Judge Kelly ordered him to pay restitution, serve 180 days in jail and undergo three years of probation.
(Andrew Paul Garcia and Luis Alberto Villanueva, two other men in the vehicle, were both found guilty of gang-related vandalism and possession of a deadly weapon; Villanueva is a fugitive who fled rather than serve his 180-day sentence.)
But while on probation Morgutia couldn't keep clean. He was arrested for DUI during a curfew and also failed to meet his community service obligations. The probation department informed the judge of the transgressions and recommended an additional 90-day jail stint for the violations.
I've been in Kelly's courtroom when he has sternly warned defendants going on probation that if they violate the rules he will respond by sending them to prison for the maximum allowable term.
Morgutia found himself in a bad position: back in front of Kelly, who declared him "a serious danger to society" and dismissed the probation department's recommendation as "a joke."
The judge then ordered the sheriff's department to transport Morgutia to prison for 44 months, the maximum term for the prior convictions.
But while living in a hellhole prison, Morgutia appealed Kelly's ruling and, drum roll, won.
This week, a California Court of Appeal based in Santa Ana declared that, drum roll again, Morgutia had "the better argument" over the California Attorney General's office, which had defended Kelly's acts.
In an eight-page ruling written by Justice William Rylaarsdam, the court reversed Kelly after deciding he had "abused" his power by using "invalid factors" to give Morgutia the maximum punishment.
"The length of the sentence must be based on circumstances existing at the time probation was granted and subsequent events may not be considered in selecting the base term," wrote Rylaarsdam, a Republican appointment to the court. "Since the defendant had no criminal record before the crimes leading to this prosecution, the trial court erroneously relied on his post-probation conduct when mentioning the increasing seriousness of his prior convictions, his probationary status and his poor performance while on probation."
The appellate court ordered Kelly to properly re-sentence Morgutia.
--R. Scott Moxley / OC Weekly