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 .
prosecutor have said they will appeal the controversial decision and will be pushing for the minimum sentence of 25-years to be reinstated .