A California judge has reduced a child rapist 's mandatory 25-year sentence down to only 10 - saying anything longer would be 'cruel and unusual punishment ' . Superior Court Judge M. Marc Kelly told an Orange County jury that 20-year-old Kevin Jonas Rojano-Nieto 'did not intend to harm ' the three-year-old girl he raped at his family home in June . The judge said that he was sure that although Rojano-Nieto sodomized the girl and covered her mouth so she could n't scream out , 'there was no violence or callous disregard for the victim 's well-being ' . Controversial : Superior Court Judge M. Marc Kelly ( seen here with a colleague in 2010 ) has handed a 10-year sentence to a 20-year-old child rapist . The mandatory sentence should be 25-years to life . Judge Kelly also said Rojano-Nieto , 'inexplicably became sexually aroused but did not appear to consciously intend to harm the victim . ' Prosecutor have said they will appeal the controversial decision and will be pushing for the minimum sentence of 25-years to life to be reinstated . Rojano-Nieto was found guilty on December 3 of raping the girl who wandered into a garage where he was playing video games . According to the court news service , Rojano-Nieto said he became aroused by the girl and pulled her pants down to rape her during the sickening attack . While this was going on , he could apparently hear her mother calling out for her , so covered her mouth so she could n't scream back . The girl told her mother after the assault that she was in pain and her mother called the police who found injuries consistent with rape . Rapist : Kevin Jonas Rojano-Nieto has been sentenced to 10-years behind bars for the rape of a 3-year-old girl . “ Although serious and despicable , this does not compare to a situation where a pedophilic child predator preys on an innocent child , ” Superior Court Judge M. Marc Kelly said according to KTLA . Deputy District Attorney Whitney Bokosky said she disagrees and will appeal . She said that Rojano-Nieto knew what he was doing was wrong because he covered the girl 's mouth during the rape so she could n't call out .
Superior Court Judge M. Marc Kelly handed Kevin Jonas Rojano-Nieto a 10-year sentence . The mandatory sentence Rojano-Nieto should have received was 25-years to life . California has said that it will appeal Judge Kelly 's decision .