Lewis

After a first trial at which the jury was unable to reach a verdict, defendant John Lewis, Jr., was retried and convicted of assaulting a child with force likely to produce great bodily injury resulting in death within the meaning of Penal Code, section 273ab. Lewis was sentenced to a term of 25 years to life. He appeals, arguing the trial court erred in failing to instruct sua sponte concerning accomplice testimony and in concluding appellant was presumptively ineligible for probation. Additionally, he argues his 25-years-to-life prison term is cruel and unusual punishment.

FACTS

A. Prosecution Case

1. The Day Before

On January 2, 2001, appellant, his wife Trida and their children, two-year-old Jalen and four-month-old Jace, were living in an apartment in the Carmel Mountain area of San Diego County. On that date Trida, who had been staying home for several months on maternity leave, went back to work. About 2:30 in the afternoon Trida came home and appellant left for his job. As Trida was changing face’s diaper, she noticed his scrotum was swollen and there were two red marks on his thigh. She decided to take Jace to the hospital. She called appellant and he…