Mimesis Law
18 April 2021

Kevin Rojano-Nieto: Another Sentence for Outrage?

February 1, 2017 (Fault Lines) — Kevin Rojano-Nieto was looking at a mandatory sentence of 25 to life for sodomizing his three-year-old half-sister. Amazingly, the judge at sentencing decided that was cruel and unusual punishment and gave Rojano only ten years. Unsurprisingly, an appellate court has reversed that.

The local press reported the result in an interesting way, starting with the title:

Orange County judge’s sentence for sex assault of 3-year-old too lenient, appeals court says

You can learn a lot about how the author (mistakenly) thinks the justice system works based just on that.

In reality, the appeals court didn’t consider lenience at all. The appellate court wasn’t just reviewing what the judge did to determine if he was excessively merciful. This case had nothing to do with whether the judge went too easy on Rojano at all. The real question was whether what the judge was required to do pursuant to California law constituted cruel and unusual punishment. Was the 25 to life the judge was going to have to give Rojano so harsh that doing so would be a constitutional violation?

Whether you agree with it or not, California’s lawmakers at some point decided that someone convicted of the same thing as Rojano deserves 25 to life. That’s what he must get absent something else intervening. California and the United States have constitutional provisions forbidding cruel and unusual punishment, though. California’s lawmakers can set a mandatory minimum, but a sentencing judge can go below it if following the law would constitute cruel and unusual punishment. A law can’t violate the Constitution. To say one does is a really hard thing to get a judge to do.

The judge wasn’t just saying that he thought Rojano deserved ten, though other judges might rightfully want to give him 25 up to life. What he did was to say that 25 to life was cruel and unusual punishment for Rojano. This is accurate, but not the entire picture:

An appeals court on Tuesday reversed an Orange County Superior Court judge’s sentence for a convicted child molester, ruling that the man should be re-sentenced with a much longer sentence.

The appeals court did reverse, Rojano will be resentenced, and his new sentence will be much longer. The snippet is correct, but there’s a lot more happening than it would seem. What the judge did is more remarkable than just what the article conveys. Consider the facts of the case:

Rojano-Nieto, 19 at the time, sexually assaulted the girl after she wandered into a Santa Ana garage where he was playing video games. The girl told her mother about the incident, who took her to a hospital clinic where a nurse performed a sexual-assault examination.

Rojano-Nieto was arrested that day and later confessed, telling police that the sodomy lasted for “five seconds” before something in him “clicked” and he stopped, according to court records.

In a nine-page sentencing analysis, Judge Kelly said Rojano-Nieto “almost immediately” stopped and realized the “wrongfulness of his act.”

While the crime was “serious and despicable,” the judge wrote, there was no “violence or callous disregard” for the victim’s well-being and noted that the girl did not suffer “serious violent injuries.”

This is about as bad as a crime gets, and no explanation Rojano could ever give would result in the crime making sense to an ordinary person. Even if Rojano told the truth about it lasting only five seconds, the fact he anally penetrated a three-year-old with his penis is not normal. It’s not okay by any stretch of the imagination. Most people aren’t going to be sad about someone capable of doing it, even if it lasted only a moment and involved no serious violent injuries, going away to prison for a very long time, if not forever.

Convincing a court that a mandatory sentence is unconstitutional is difficult enough when the crime doesn’t have about the most offensive set of facts imaginable. To say a mandatory minimum is cruel and unusual is to say that the legislature violated the Constitution. Moreover, the standard obviously requires not only that the punishment be cruel, a hard obstacle to overcome when an innocent child was violated in the most horrible way and most people wouldn’t mind the person who did it going away forever or being put to death, but that it also must be unusual. If everyone is being cruel in the same situation in their neck of the woods, it’s tough luck for the defendant; the cruelty isn’t unusual.

Criminal defense attorneys routinely mount hard-fought but ultimately unsuccessful cruel and unusual punishment attacks against horribly strict mandatory sentences for crimes where there isn’t even a victim. There’s so much case law shooting down such arguments where most people would be offended by the harshness of the sentence compared to the crime that it’s unsurprising a judge’s decision granting extraordinary relief like that where the crime is so offensive would be reversed. The appellate court’s reasoning is unsurprising:

“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,” the court said. “Therefore Jane Doe’s limited physical injuries and the absence of a violent physical attack are not significant to our assessment of the serious nature of Rojano’s offense.”

The court said Kelly “ignored important, undisputed evidence about the entire scope of Rojano’s actions.“

As a defense attorney, one of the worst parts of these sorts of appellate cases is that they can discourage trial court judges from reducing sentences where they really should be reduced. Nobody pickets even a tiny fraction of the excessively harsh sentences handed down every day all over the country. Go too lenient, though, and you might become the new scapegoat judge for an angry mob.

As another article explains, the judge had plenty reasons for giving less than the mandatory minimum:

In an analysis, Kelly said he compared sentencing for similar and other offenses, looked into details of the case and took into account a court-ordered psychological examination and a sentencing report that concluded Rojano-Nieto wasn’t a true pedophile or sexual predator and wouldn’t pose a danger to society.

The mandatory term would be “grossly disproportionate” in the case and would be unconstitutionally cruel and unusual, Kelly wrote. “The manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case,” he wrote.

Although he acknowledged the act was “serious and despicable,” Kelly said Rojano-Nieto stopped the assault within seconds and was remorseful, the girl wasn’t seriously injured and her parents had urged leniency.

The judge looked at various sentences, which presumably involved cases with similar facts where defendants got less than 25, as well as cases where the defendants got 25 and did far worse to their victims. The evaluation and report must have been very convincing, though it’s little consolation that Rojano is not a true pedophile or sexual predator when whatever he may be was still bad enough for him to do what Rojano did to that child. The fact that he wouldn’t pose a danger to society was no doubt an important factor in the judge’s decision, as were the arguably mitigating facts of the offense and the victim’s parents’ call for leniency.

Rojano’s new minimum sentence is over half a decade longer than the time he had been alive when he committed the offense. The crime was horrible, but the judge had some fairly compelling reasons for thinking 10 years was a better sentence than 25 years. The issue was that he had to say 25 was cruel and unusual to go with what he thought was right. That’s the real reason why the sentence is shocking.

This may indeed have been as good a sentence as any for public outrage, but it’s largely due to nuance, to the lengths the judge had to go to get to 10 years. That’s probably why it isn’t getting an awful lot of attention.

3 Comments on this post.

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  • Lawrence Brautigam
    1 February 2017 at 9:39 am - Reply

    Gross contradiction here.

    “Nobody pickets even a tiny fraction of the excessively harsh sentences handed down every day all over the country. Go too harsh, though, and you might become the new scapegoat judge for an angry mob.”

    • shg
      1 February 2017 at 10:06 am - Reply

      That was a typo and is now corrected. Thanks for pointing it out.

  • Lawrence Brautigam
    1 February 2017 at 5:35 pm - Reply

    Thank you.

    You are welcome.

    Good analysis. But I do wonder if the longer sentence will absolutely make a criminal of him. Ouija board time.