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“How dare a sworn member of the judiciary tell the family, and through their family a 3-year old child, that the sodomy was not brutal?” This from Todd Spitzer, a victim’s  rights attorney after a California judge handed down a 10-year sentence to a man convicted of sodomizing a 3-year old child.

Now, Orange County Superior Court Judge, M. Marc Kelly may lose that judgeship as victim’s rights advocates call for his removal from the bench.

Kelly decided earlier this month to sentence 20-year old Kevin Rojano-Nieto of Santa Ana to only 10 years after a jury found him guilty of the crime against the toddler.

The conviction carries a mandatory sentence of 25 years to life, but during the sentencing phase of the trial, Judge Kelly issued a rare declaration that 25 years amounted to cruel and unusual punishment. He also made the judgement that Rojano-Nieto was not a long-term predator and would unlikely be a threat in the future.

So, this Judge Kelly just arbitrarily decides that a 20-year old sodomizing a toddler does not make the 20-year old a predator. Really?! In whose universe does this a sound judgement make?

Kelly also wrote in a nine-page sentencing analysis that the mandatory punishment “is grossly disproportionate to the individual’s culpability”, and that “there was no violence or callous disregard for the victim’s well-being.” So, the judge also decided that the sodomy was neither callous nor harmful to the toddler.

Kelly, a former prosecutor, has received high praise for his years in the district attorney’s office, but this case has all but erased the goodwill from many who have worked with him.

“I’ve always respected Judge Kelly, and I do agree that he was a very hard worker as a prosecutor. And I think he had a good reputation up until now. Instead of following the law, Judge Kelly decided to make his own law,” Spitzer said.

The Orange County district attorney says his office will appeal Kelly’s ruling.

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