More news today that Orange County Superior Court Judge M. Marc Kelly has trouble knowing how to properly sentence criminal defendants.
As we reported in 2010, Kelly decided to go easy on Stephen Robert Deck, a 51-year-old California Highway Patrol lieutenant with a criminal fetish of cruising the Internet for sex with 13-year-old girls.
According to police records, Deck's documented moves included:
–Attempting a date with a minor in Laguna Beach after learning the girl's parents were not home;
–Attempting a date with a minor in Costa Mesa after trying to lure her to a South Coast Plaza-area hotel for intercourse without condom use;
–Attempting a sex date with a minor and her younger sister, 10 years old, in the Pacific Northwest.
Even though Deck used his high-level law enforcement position and experience to foil a thorough investigation into his conduct, Kelly lamely declared that the defendant's cop job entitled him to a punishment discount.
While two other men caught in the same police operation (and, unlike Deck, pleaded guilty before trial) received 18-month prison trips, Kelly gave the unapologetic CHP boss . . . zero time in prison, but only a term of probation.
You know, of course, that Kelly is in the midst of an emotional recall effort because earlier this year he refused to impose the mandatory minimum 25-year sentence on Kevin Jonas Rojano-Nieto, a 20-year-old Orange County man who sodomized his three-year-old, half sister in a garage.
Kelly declared the crime "horrific" but "not typical of a predatory, violent, brutal sodomy of a child case" and handed Rojano-Nieto a whopping 15-year prison reduction.
Get ready for severe whiplash: Two years earlier, the judge gave a 47-year-old Huntington Beach man a punishment of 55-years to life in prison for raping his 4-year-old relative.
This week, a California Court of Appeal in Santa Ana rejected three of Kelly's sentencing decisions in yet another case, People v. Eswin Samuel DeLeon-Mendez.
In July 2013, DeLeon-Mendez–a man with no criminal record–entered a woman's apartment for a burglary/robbery and an unsuccessful rape attempt of his 20-year-old victim.
Kelly sentenced the defendant, who expressed remorse, to a term of 7 years to life in prison for assault with the intent commit rape during the commission of a burglary, added a concurrent 6-year term for first-degree robbery and sustained a separate burglary conviction plus mandatory AIDS testing.
A defense lawyer as well as the California Attorney General's office told the appellate panel that the judge didn't accurately understand the state's penal code guidelines on the robbery, burglary and AIDS testing provisions.
As the statutes require, they dropped the 6-year term to four, dismissed the burglary count as included in the main count and dropped the AIDS testing order.
They also ordered Kelly to appropriately modify the punishment record to reflect their revisions.
In the Rojano-Nieto case, petitioners are seeking financial support and volunteers to assist in recalling the judge.
Kelly, a conservative Republican, has supporters. The local criminal defense bar issued a statement earlier this year that rejected a recall as an inappropriate intrusion on judicial independence.
However, Orange County District Attorney Tony Rackauckas as well as Todd Spitzer, chairman of the Board of Supervisors and a former prosecutor, have repeatedly blasted the Rojano-Nieto punishment as an outrage.
Rackauckas has a pending appeal in the case.
The controversy is frequently highlighted on KFI's John and Ken Show, where they also have a related website entry HERE.