Judge M. Marc Kelly Rebuked by OC Board of Supervisors, But He Also Has Defenders

Was the sentence Judge M. Marc Brown gave Kevin Jonas Rojano-Nieto just?
Was the sentence Judge M. Marc Brown gave Kevin Jonas Rojano-Nieto just?
Courtesy of the Orange County District Attorney's office

UPDATE NO. 3, APRIL 23, 10:58 A.M.: The Orange County Board of Supervisors on Tuesday approved a resolution calling for the resignation Superior Court Judge M. Marc Kelly, although the rebuke was less harsh than a previous version of the resolution the supes considered last week.

The resolution says the supervisors: "wholly repudiate the suggestion, in Judge Kelly's ruling, that the defendant's conduct was not violent or in callous disregard for the well-being of the victim;" "rebuke and denunciate Judge M. Marc Kelly's decision to impose a sentence [that] illegally fails to comply with the mandate of (state law) ... and could, in the very near future, expose the children of Orange County to the defendant's sexual, pedophilic appetite;" have "no confidence in Judge Kelly or his willingness to faithfully and fairly administer the laws of the State of California in the public's interest;" and demand Kelly's "immediate resignation." The board also voted to support Orange County District Attorney Tony Rackauckas' appeal of Kelly's ruling. Paul Meyer of the Orange County Criminal Defense Bar Association's Founding Board had implored the board to hold off on passing a resolution until the appeal process concludes. "I told them, `You're proposing a resolution to denunciate a judge for a decision he made in a legal case that is now on appeal," Meyer told City News Service. "What will you do if the Court of Appeal agrees with Judge Kelly? ... Does your board want to be in a position to call for the resignation of Court of Appeal justices? It seems to me that this is an appropriate case to allow the appellate process to proceed." But Supervisor Shawn Nelson alleged defense attorneys are only supporting Kelly because they want more Orange County judges to deviate from state-mandated sentences. And Board Chairman Todd Spitzer, himself a former Orange County prosecutor and the leader of a state victims rights initiative, disagreed with the defense attorneys' contention that this is a legal issue. "It's how offensive and out of touch and irresponsible Judge Kelly's opinion was," Spitzer said. "It's how he characterized the act of violence against a 3-year-old. He said the arousal was inexplicable. He said it was nonviolent and distinguishable from other sexual predators and basically it was an unconscious act. I'm focused on the wording of the opinion and whether Judge Kelly should continue to sit on the bench."

Meyer had noted that Kelly based his sentence on the victim's family members pleading for leniency, as they are also family members of the defendant. The judge was also looking at a probation report that indicted 20-year-old Kevin Jonas Rojano-Nieto had told officers he was the product of a "one-night stand," that his father did not know that he existed until he was 4 and that his old man would beat him. Rojano-Nieto also characterized his mother as dishonest and manipulative. He told probation officers he was a virgin and that while in jail he became a "newborn Christian" who has "given his life to God." He wished he'd enlisted in the Army. "Nobody supported me to go to military," he wrote. "They would just say things to lower my self-esteem, so I wouldn't join, but I did do a program in high school--JROTC -- for Army. I really was at my happiest then." Rojano-Nieto admitted he had "sexual thoughts" when the 3-year-old girl he is related to wandered into his garage and that he "zoned out" when he sodomized the toddler. "The defendant almost immediately realized what he was doing and stopped," according to the report probation officials prepared for sentencing. "He related he accepts responsibility for his actions and regrets harming the victim." Rojano-Nieto's mother, aunt, uncle and step sister wrote testimonials on his behalf for the probation report.

UPDATE NO. 2, APRIL 14, 5:36 P.M.: After receiving a legal analysis from the Orange County Criminal Defense Bar Association, the Orange County Board of Supervisors put off a vote on a resolution calling for the resignation Judge M. Marc Kelly. Supervisor Lisa Bartlett, who last week joined Board Chairman Todd Spitzer and Supervisor Shawn Nelson in publicly calling on Kelly to resign lest the judge face a recall effort, pushed for a postponement to next Tuesday's meeting so language in the resolution can be further tweaked, City News Service reports.
 
UPDATE NO 1, APRIL 10, 1:03 P.M.: Eleven founding and current board members of the Orange County Criminal Defense Bar Association have signed a letter in defense of Orange County Superior Court Judge Marc M. Kelly, who is facing recall, threats and an appeal over the controversial prison sentence he gave to a 20-year-old Santa Ana man. The following was sent to the Weekly from the Costa Mesa offices of veteran Orange County defense attorney Paul S. Meyer. (Stay tuned after the letter for other Kelly controversy developments.)

IN DEFENSE OF JUDGE MARC KELLY -  THOSE WHO ATTACK JUDICIAL INDEPENDENCE ATTACK THE FOUNDATION OF OUR FREEDOMS. 
Judge Marc Kelly is a highly respected judge with a decades long history of the highest integrity and careful judicial thought.  You may not agree with this decision, but Judge Kelly has always demonstrated the strongest respect for the rule of law.  An independent judiciary, free from political fear or favor, is essential to democracy.  Would you like to have your case decided by a judge who is currying favor with one political persuasion or the other?  Calls for a judge to resign because of decisions that he or she has made are as repugnant as calls for a judge to accept a bribe.  Both are attempts to influence a judge from outside the judicial system: one by fear, one by money.  Our democracy requires three strong independent branches of government.  Recent statements by politicians are a blatant violation of the constitutional rules of our democracy.  Beware of politicians who seek publicity for their own personal agenda - we all have a right to a free and independent judiciary. 

Orange County Criminal Defense Bar Association
Founding and Current Board

Paul S. Meyer, President
Kate Corrigan, Immediate Past President
Ed Welbourn, Vice President
Ed Flores, Treasurer
Jennifer Keller, Founding Board
Al Stokke, Founding Board
John Barnett, Founding Board
Gary Pohlson, Founding Board
Mike McDonnell, Founding Board
Jack Earley, Founding Board
Ed Munoz, Founding Board

  Meanwhile, Paul Anderson, the excellent City News Service reporter who apparently sleeps in the Orange County courtroom bunk that's next to Moxley's, has presented Kelly's full rationale in his ruling to sidestep a state-mandated 25-year sentence and instead send 20-year-old Kevin Jonas Rojano-Nieto to prison for 10 years for sexually assaulting a 3-year-old relative in Santa Ana.

In handing down his ruling, Kelly said he considered the general principles of sentencing, which include "protecting society, punishing the defendant, encouraging the defendant to lead a law-abiding life and deter him from future offenses, deterring others from crime by demonstrating its consequences, preventing the defendant from committing new crimes by isolating him with incarceration."

Kelly went on to say that sentencing "is the most difficult part of a trial judge's job ... It is not an easy task and there are often no bright-line answers to what constitutes a fair and appropriate sentence."

Kelly acknowledged that he was entering rare legal waters, commenting that in his 15 years on the bench he had never found a sentence "cruel and unusual" and requiring a deviation from the state mandates.

"Sodomy of a 3-year-old child is a horrific crime, and imposition of harsh punishment will ordinarily not give rise to constitutional concerns," he said.

"However, in looking at the facts of Mr. Rojano's case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case."

Kelly said 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."

Kelly 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."

The defendant "has shown extreme remorse for his actions and has been willing to accept the consequences," Kelly said. "Mr. Rojano was born into and raised in a dysfunctional familiar environment."

Pointing to a doctor's report, Kelly said that while growing up, the defendant suffered "a great deal of family disruption and abuse, making him an insecure, socially withdrawn, timid, and extremely immature young man with limited self-esteem."

Kelly was also moved by the support of the defendant's parents. He allowed them to hug their son before deputies handcuffed him and took him to a holding cell when the hearing concluded. He also let the defendant's grandmother hug him.

Kelly said he did not "forget" the victim in the case, but when she testified in the trial, she appeared to be a "happy, healthy child."

"It is hard to gauge how this crime might affect her mental state in the future, but she did not suffer serious violent physical injuries, and by all counts she appears to be headed for a normal life," the judge said. "It is the court's hope that she has fully recovered from this incident."

The defendant's parents requested probation in the case, but Kelly said it was necessary that Rojkano-Nieto be "punished severely for his conduct."

Upcoming Events

At a court hearing in February, Kelly indicated he was influenced by reports prepared by the Probation Department and psychological experts--and moved by a statement written by the woman who is the mother of the 3-year-old girl and Rojkano-Nieto.

In the letter, which her husband, who is Rojkano-Nieto's stepfather, helped her prepare, the mother appeals to Kelly to put her son on probation. That prompted Kelly to remark at the hearing, "I have been doing this a long time, and the circumstances of this whole situation are very tragic. ... As you said, they are heartbreaking and uproot families. ... That letter you just read to me is probably one of the most heartfelt I have heard in a long time in terms of your ability to want to forgive and move forward. I believe it's very sincere."

The mother told Kelly that she loves her son "very dearly as I love all my children," and that his assault on her daughter has proven "not only extremely difficult, but utterly devastating for me and my family to fully come to terms with ..."

She added she had not yet summoned "the strength nor the courage" to discuss the crime with her son, "although my husband was able to make his peace with Kevin." She claimed her son "has allowed God into his heart and has committed himself to God's guidance," prompting her to more deeply focus on forgiveness.

"Following Kevin's example will allow us to tie the loose ends and to stop the devastating ripple effects of this tragedy," said the mother, who also alluded to "childhood hardships when he was ripped away from me," and that he "became a happy and caring young man" as he returned to her care the past couple of years.

She called her son "kind-hearted and loving by nature," and that he understood "the gravity of his actions and that he laments his mistakes."

"His decision to turn to God during this hardship is a direct attempt to seek help," the mother said. "Kevin is a good person that has endured childhood traumas. He requires rehabilitation that focuses on psychological healing as a preventive measure, and not solely on retribution for his transgressions."

The Orange County District Attorney's office today released the following the statement from the parents:

We would like to say thanks for the public's concern regarding our case. However, the hardships brought about by this unfortunate event have already caused unspeakable amounts of pain and suffering to our family. While we understand that the public's opinion is genuine and well-intended, the media outbreak is increasing the already unbearable burden of pain and suffering on our family. It is for this reason that we would like to kindly and respectfully request that the media help ease our suffering by respecting our privacy and directing any questions or concerns to the Office of the Orange County District Attorney. We are grateful for your understanding.

And now for the other side of the legal coin ...

* During a news conference Thursday, three of the five members of the Orange County Board of Supervisors called on Kelly to resign, otherwise they will lend their political and fundraising muscle to efforts to recall the judge. Supervisor Lisa Bartlett called Kelly an "activist" judge who handed down an "illegal" and "unconscionable ruling" that proves he "must have forgotten his job is to protect the victim, not the predator." Board Chairman Todd Spitzer said his office has already received $15,000 in pledges to support Kelly's recall, but Supervisor Shawn Nelson cautioned the earliest a recall election could be held would be next March. "We're all upset and rightly so, but this is no sprint," Nelson said.

* The supervisors were joined by recall organizer Bryan Scott, who called the Facebook page he started to call for Kelly's ouster "10,000 likes strong." He encouraged supporters to maintain their passion through next year--if Kelly does not step down before then--because the judge's ruling could lead to a "ripple effect" of defendants using the opinion to argue for lesser sentences. A recall election would require about 90,000 signatures from registered voters that would have to be collected in 160 days, according to Orange County Registrar of Voters Neal Kelley. Scott also pointed to another Kelly sentence that we highlighted in our original post below: the year in jail and five years probation given in March 2010 to Stephen Robert Deck. The retired California Highway Patrol lieutenant tried to arrange a tryst in Laguna Beach with a 13-year-old girl, who was really an undercover agent who ensnared the officer in a sting targeting online sexual predators. Deck's sentence and conviction were upheld by the Fourth District Court of Appeal, but the federal Ninth Circuit Court of Appeals overturned it due in part to an argument made in closing arguments by Senior Deputy District Attorney Robert Mestman, who fought for the maximum four-year prison sentence. The ruling is now on hold while the U.S. Supreme Court considers a similar case that will likely establish final precedence. Scott says the Deck ruling is an example of Kelly's failure to learn his lesson. (Click here for Moxley's exhaustive Stephen Robert Deck coverage.)

* Orange County District Attorney Tony Rackauckas sidestepped questions about recall efforts in an interview with City News Service Wednesday, explaining it was more appropriate for him to seek "legal remedies" through the appellate court. "We still have to wait for the transcripts (of last Friday's sentencing hearing), but everything about the case indicates it's clearly an illegal sentence and one that is appealable," Rackauckas said. He disagreed with Kelly, a former prosecutor who has been a judge since 2000, ruling that he had the authority to deviate from the state-mandated punishment in the case. "It's mandatory language in that section'' of the law," Rackauckas said. "So that indicates there is no discretion. ... We disagree with the ruling vehemently and our remedy is to appeal. We expect this will be reversed on appeal."    * A victim of pedophilia in the 1970s who hosts a website that honors judges who give pedophiles long prison sentences has also weighed in on Kelly's sentencing "fail." You can read Palm Springs resident Carol Carmel's "website fury" against the judge here: HangingJudges.com. (To be clear, "hanging judges" refers to judges Carmel honors for their harsh sentences, not what she would like to see happen to judges like Kelly.)

ORIGINAL POST, APRIL 8, 6:37 A.M.: A website, Facebook page and online petitions aim to remove from the bench an Orange County Superior Court judge who deviated from a mandated 25-year-to-life sentence for a man who sexually assaulted a 3-year-old girl, imposing a 10 year prison term instead.

"Superior Court Judge M. Marc Kelly reduced the MANDATORY sentence from 25 to 10 yrs for a man convicted of sodomizing a toddler. Remove him from the bench!" reads Facebook/Remove Judge M. Marc Kelley from the Bench, which also links to removejudgekelly.com.

Meanwhile, petitions calling for Kelly's removal are being spread by KFI's John and Ken and a Chicago resident via Change.org.

Kelly has previously been picked up by the Weekly radar for refusing to send a man to prison for trying to molest a little girl during a Laguna Beach police sting, explaining the defendant's status as a California Highway Patrol lieutenant "ought to count for something."

But the judge also sent a Huntington Beach man to prison for 55 years for sexually assaulting a 4-year-old female relative he was babysitting. So hizzoner knows how to impose tough sentences.

In the latest case, 20-year-old Kevin Jonas Rojano was playing video games in the garage of his Santa Ana home on June 4 of last year when a 3-year-old girl who he is related to wandered in, he became sexually aroused and pulled her pants down and then assaulted her, according to Deputy District Attorney Whitney Bokosky.

The girl's mother tried to get into the garage as she looked for the child, whose mouth was being covered by Rojano, said Bokosky, who added in City News Service's coverage that when the mom realized the garage door was locked, she went to look for her daughter at a neighbor's home.

Realizing the mother had left, Rojano had the child masturbate him, Bokosky said.

The mother eventually returned to an unlocked garage where her daughter appeared unharmed, but moments later in the kitchen the girl complained of pain in her anus and the mother noticed it was torn, Bokosky said.

Rojano was convicted Dec. 3 of sodomizing a child younger than 10 and lewd or lascivious acts with a minor, which would normally mandate a term of 25 years to life in prison, but in a rare legal move Kelly found that in this case that punishment would be unconstitutional.

"[I]n looking at the facts of Mr. Rojano's case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case,'' Kelly reasoned in his ruling. "Mr. Roiano did not seek out or stalk (the victim). He was playing video games and she wandered into the garage. He inexplicably became sexually aroused but did not appear to consciously intend to harm (the victim) when he sexually assaulted her."

Rojano "almost immediately" stopped and "realized the wrongfulness of his act," added Kelly, who found that "serious and despicable" but not comparable 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."

The judge also said the defendant "has shown extreme remorse for his actions and has been willing to accept the consequences," and "was born into and raised in a dysfunctional familiar environment," and had suffered "a great deal of family disruption and abuse, making him an insecure, socially withdrawn, timid, and extremely immature young man with limited self-esteem."

But Bokosky, who is contemplating an appeal of the sentence, says Kelly should have taken into account Rojano trying to quiet the girl during the attack and that he resuming it when the mother walked away.

"Mandatory minimum sentences are created for crimes deemed so heinous that any sentence less than the mandatory would be unjust," reacts Sara Flores, the Change.org petitioner. "Judge Kelly has taken it upon himself to impose a sentence that is just that: unjust."

Email: mcoker@ocweekly.com. Twitter: @MatthewTCoker. Follow OC Weekly on Twitter @ocweekly or on Facebook!


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