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Name: People v. Lewis
Case #: D040806
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/19/2004
Subsequent History: 10/13/04: Rev. den.

Appellant was convicted of a violation of Penal Code section 273ab for assaulting a baby in a manner likely to cause great bodily injury or death. On appeal, he argued that the trial court erred when it failed to instruct sua sponte that the jury must determine whether appellant’s wife, Tricia, was an accomplice to the crime. If it so found, it was to treat her testimony with distrust and an insufficient basis for guilt unless corroborated. Appellant contended the instruction was required because there was evidence that a prior injury made the baby more susceptible to the instant injury, and there was evidence that Tricia could have inflicted the prior injury. The appellate court rejected the argument. There was no evidence that Tricia ever harmed the child, and therefore no evidence that she was an accomplice. Even if the trial court had erred in failing to give accomplice instructions, the error was harmless because Tricia’s testimony supplied no crucial evidence of the prosecution’s case. Further, the jury was fully instructed concerning third party culpability, and instructed that they should consider bias and motive in judging credibility of witnesses. However, the trial court presumed that appellant was ineligible for probation because of the finding of great bodily injury, under Section 1203, subdivision (e)(3), and sentenced him to state prison without making a finding that appellant intended to inflict great bodily injury. Since he would only be presumptively ineligible for probation if he intended to commit great bodily injury, remand was required to determine whether appellant was probation eligible. Further, while appellant’s sentence of 25 years to life was harsh, it was not disproportionate to his culpability, and therefore it was not cruel and unusual punishment.