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Posted by Fay Arfa | Feb 01, 2017 | 0 Comments

SAN DIEGO, Calif. – The Court of Appeal, Fourth Appellate District, Division One reversed a trial judge's illegal 10 year sentence for a man who sodomized a toddler and ordered the judge to impose the mandatory minimum sentence of 25 years to life in state prison and mandatory lifetime sex offender registration. Kevin Jonas Rojano-Nieto, 21, was found guilty by a jury on Dec. 3, 2014 of one felony count of sexual intercourse or sodomy with a child 10 years or younger and one felony count of lewd acts upon a child under 14. His resentencing date is to be determined.

“The Orange County District Attorney's Office applauds the decision by the Court of Appeal, Fourth Appellate District, Division One, which recognizes that the Legislature's mandated punishment of 25 years to life for committing sodomy on a toddler is a constitutionally valid sentence designed to protect the most vulnerable victims in our community,” Orange County District Attorney Tony Rackauckas stated. “This was a good day for child victims of brutal sex assaults and the People of Orange County.”

Circumstances of the Case

On June 4, 2014, Rojano-Nieto was in a garage detached from a Santa Ana house playing video games when 3-year-old Jane Doe walked in. Rojano-Nieto became sexually aroused upon seeing her, locked the garage door, then sexually assaulted Jane Doe by sodomizing her. When Jane Doe's mother went to look for the victim and approached the garage door, the defendant covered Jane Doe's mouth. When the victim's mother left to continue looking for Jane Doe, Rojano-Nieto continued the sexual assault by using his hand to force Jane Doe to touch his penis and masturbate him.

Once Rojano-Nieto let the victim out of the garage, Jane Doe met her mother inside the house and told her she was in pain. That same day, Jane Doe's mother took the victim to St. Joseph's Urgent Care in Santa Ana, who upon examining the toddler found physical injuries consistent with the assault, including lacerations on her anus. Hospital officials then involved social services and the Santa Ana Police Department, who investigated this case.

The defendant denied the incident initially to Jane Doe's family and then to the police. At trial, the defendant's statements were introduced as to what happened that day, “I just, um,…picked her up and then pulled down her pants and *** five seconds … put my penis in…In her butt. Uh, I just *** thinking dirty things like this.”

Senior Deputy District Attorney Whitney Bokosky of the Sexual Assault Unit prosecuted this case.

Procedural History

On June 6, 2014, the OCDA filed a complaint against Rojano-Nieto, charging the defendant with one felony count of sexual intercourse or sodomy with a child 10 years or younger.

On June 11, 2014, Rojano-Nieto was arraigned in Department CJ-1 of the Central Jail, and pleaded not guilty.

On June 19, 2014, upon receiving new information, the OCDA filed an amended complaint adding one felony count of a lewd act upon a child under 14.

On July 21, 2014, Rojano-Nieto was in court for a preliminary hearing and was held to answer to both felony counts, and on Aug. 5, 2014, Rojano-Nieto pleaded not guilty to both counts.

On Dec. 1, 2014, opening statements in Rojano-Nieto's jury trial began. The trial lasted two days.

On Dec. 3, 2014, a jury found Rojano-Nieto guilty of one felony count of sexual intercourse or sodomy with a child 10 years or younger and one felony count of a lewd act upon a child under 14. The defendant faced a sentence ranging from the minimum sentence of 25 years to life in state prison to the maximum of 33 years to life in state prison.

On Feb. 6, 2015, during the scheduled sentencing hearing, the court ordered the OCDA to submit a brief on Eighth Amendment issues on the court's own motion.

On April 3, 2015, at Rojano-Nieto's sentencing, the court, over the People's objection, sentenced Rojano-Nieto to 10 years determinate in state prison and mandatory lifetime sex offender registration, citing that 25 years to life in state prison was cruel and unusual punishment under the U.S. Constitution.

On April 16, 2015, OCDA filed a notice of appeal in Orange County Superior Court to overturn Rojano-Nieto's sentence of 10 years determinate in state prison.

Senior Deputy District Attorney Matt Lockhart of the Appellate & Training Unit handled the appeal of this case.

OCDA filed a brief arguing the following:

“The trial court erred as a matter of law when it refused to sentence Rojano-Nieto to the legislatively-mandated indeterminate sentence for the crime of which he was convicted. The nature of the offense and the offender do not compel a reduction of the legislature's prescribed indeterminate sentence.

The trial court's findings regarding the defendant's behavior, which it used to abrogate the legislature's enacted sentence in this case, are not based on substantial evidence. In fact, the evidence presented at trial contradicts many of the trial court's statements.

Rojano-Nieto did not immediately regret his actions; otherwise, the jury would not have convicted him of both sexual assaults charged. The trial court's findings that the defendant is not a pedophile, was not predatory, is a low-risk to re-offend, and is not a risk to public safety were based on its misunderstanding and misstating the contents of the 288.1 report and the probation report. No evidence supports the trial court's conclusions.

Rojano-Nieto failed to prove that the legislature's mandatory punishment for his crimes is unconstitutional. A diagnosis of whether or not the defendant is a pedophile was impossible during just 90 minutes in Orange County Jail.

There is no credible evidence that Rojano-Nieto did not have callous disregard for, nor lacked the intent to harm three-year-old Jane Doe when he sodomized and molested her; neither is it relevant to the inquiry. Moreover, there is no evidence supporting the trial court's finding that Jane Doe was not harmed by the serious and violent assaults the defendant committed on her.

Rojano-Nieto fails to show by a comparison of his offense to other California offenses that the legislature's enacted punishment is grossly disproportionate to the offense that it shocks the conscience and offends fundamental notions of human dignity. The Defendant fails to show that, compared with the other states, California's punishment for his crime of sodomy of a three-year-old is grossly disproportionate so that it shocks the conscience and offends fundamental notions of human dignity. In fact, California is well within the majority of states in how it punishes defendant's serious and violent sexual offenses.

A comparison of this case with other appellate cases ruling on disproportionality claims reveals that this is not one of those exquisitely rare cases demonstrating gross disproportionality that shocks the conscience and offends fundamental notions of human dignity.

Rojano-Nieto misunderstands his burden of appeal. In the trial court, the People objected to and now appeal from the trial court's unlawful sentence. In this denovo hearing, it is the defendant's burden to demonstrate that the facts establish that the legislature's mandated sentence should not be given. The defendant cannot rely on the Eighth Amendment to the United States Constitution for the same reasons the legislature's mandatory sentence does not violate the California Constitution. It is not grossly disproportionate to the offense and the offender.”

Excerpts of the ruling by the Court of Appeal, Fourth Appellate District, Division One:

“We do not agree with the trial court's assessment of the significance of Rojano's actions. Although the trial court minimized the serious nature of Rojano's molestation of Jane Doe by characterizing it as happening ‘in an instant' and stopping ‘within seconds' when Rojano ‘realized the wrongfulness of his act,' the trial court ignored important undisputed evidence about the entire scope of Rojano's actions.”

“The trial court found it significant that Jane Doe ‘did not suffer serious violent physical injuries' and contrasted Rojano's case with a ‘violent brutal sodomy of a child case.' We do not agree with this analysis. Violent physical injury is not what makes the crime of sodomy against a young child a serious and horrific crime … 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.”

“Even an extremely immature 19-year-old should understand that it is wrong to sodomize a three-year-old child and should be able to control his sexual impulses.”

“Having reviewed all three prongs of the relevant test under the California Constitution, we conclude that a 25-year-to-life sentence is not ‘so disproportionate to' Rojano's crime that it ‘shocks the conscience and offends fundamental notions of human dignity.'”

*Defendant was originally sentenced to 10 years in state prison; court remands case for defendant to be sentenced to 25 years to life

Orange County District Attorney / Case # 14CF1874 / January 31, 2017

About the Author

Fay Arfa

Fay Arfa has the distinction of being Certified as a Specialist in two separate areas of law – Criminal Law as well as Appellate Law – by the California State Bar, Board of Specialization. The National Board of Trial Advocacy has also awarded her a board Certification in Criminal Trial Advocacy. ...


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