California Court of Appeal, First District, Fifth Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
Superior Court of the County of Alameda, No. C163699, Joan S. Cartwright, Judge. (Super. Ct. No. 163699).
Shannon Chase, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Seth K. Schalit and Laurence K. Sullivan, Supervising Deputy Attorneys General for Plaintiff and Respondent.
Marcellous Lewis (Lewis), a juvenile at the time of his offenses but tried as an adult, appeals from a judgment of conviction and sentence after a jury found him guilty of the sexual penetration and rape of one victim, the rape of a second victim, and the murder of a third victim. Lewis contends: (1) the court should have granted his motion to sever the rape and other sexual assault charges from the murder charge; (2) the court did not adequately investigate possible juror bias; (3) the prosecutor committed misconduct in his discussion of provocation during closing argument; (4) the sexual penetration and rape of one of the victims were not separate acts, and the court therefore should not have imposed consecutive terms for the corresponding offenses; and (5) his sentence of 115-years-to-life violates his constitutional right against cruel and unusual punishment.
In the published portion of this opinion, we conclude that Lewis' sentence is unconstitutional and the matter must be remanded for the trial court to determine a parole eligibility date within Lewis' expected lifetime, unless it concludes that his offenses reflected such irreparable corruption that it is appropriate to preclude him from the possibility of parole during his lifetime. In all other respects, we will affirm the judgment, as we conclude in the nonpublished portion of the opinion that Lewis' remaining arguments are unavailing.
I. FACTS AND PROCEDURAL HISTORY
In November 2009, the court granted the prosecution's motion to consolidate two complaints against Lewis: a complaint charging him with the
kidnap, sexual penetration, and rape of Jane Doe 1 and the kidnap and rape of Jane Doe 2; and a complaint charging him with the murder of Robert Tibbs (Tibbs).
In May 2010, the court held Lewis, a minor at the time of the crimes, to answer to the charges as an adult. (Welf. & Inst.Code, § 707, subd. (d).).
In September 2011, Lewis was charged in an amended information with the following: in count one, the murder of Tibbs [165 Cal.Rptr.3d 626] (Pen.Code, § 187, subd. (a)); in count two, sexual penetration with a foreign object upon Jane Doe 1 (§ 289, subd. (a)(1)); in count three, rape of Jane Doe 1 (§ 261, subd. (a)(2)); and in count four, rape of Jane Doe 2 (§ 261, subd. (a)(2)). In connection with the murder count, the information alleged that Lewis had personally and intentionally discharged a firearm and caused great bodily injury and death. (§§ 12022.53, subds. (b)-(d) & (g); 12022.7, subd. (a).) As to the sexual assault counts, the information alleged that Lewis kidnapped his victims, and perpetrated offenses against multiple victims, within the meaning of the one strike law (§ 667.61).
By motion in limine, Lewis sought an order severing the sexual assault counts from the murder count. As discussed post, the court denied the motion.
The matter proceeded to a jury trial.
A. Prosecution Case
At trial, victim Jane Doe 1 was referred to as Crystal Doe (Crystal), and victim Jane Doe 2 was referred to as Sabrina Doe (Sabrina). According to the prosecution, Lewis digitally penetrated and raped Crystal, raped Sabrina, and shot and killed Tibbs, all before he turned 18 years old.
1. 2006 Digital Penetration and Rape of Crystal
Crystal met Lewis in 2005 or 2006. As of October 2006, she was 16 years old and he was 15 years old. Crystal was a virgin.
Crystal testified that she received a call from Lewis in the afternoon of October 2, 2006, as she was walking with her friend Malysa. When Lewis asked Crystal to go to his house, Crystal declined but agreed to meet him at a church at " East 21st and 21st Ave." Malysa went home.
Crystal met Lewis at the front steps of the closed church. When Crystal saw her brother drive by, Crystal and Lewis moved to the side steps of the
church at Crystal's suggestion, because she thought she would be in trouble if her parents learned that she was with a boy.
After Lewis and Crystal talked for awhile at the side of the church, Lewis put his hand on Crystal's lower back. Crystal told him to stop; Lewis stopped " for a minute" but then resumed. Although Crystal attempted to push Lewis' hand away, Lewis tried to put his hand farther down her back, into her pants. Crystal told him, " no."  Feeling unsafe, Crystal stood up and tried to pull a box cutter out of her back pocket, intending to cut Lewis, but the box cutter slipped from her hand.
While Lewis and Crystal were on their feet near a cross, Lewis held Crystal's pants by the belt loop with one hand, forced his other hand inside her pants, and inserted one or more of his fingers into her vagina. Crystal felt pain and told him " no" and " stop." She tried to pull Lewis' hand out of her pants, but he just dug deeper. She kept telling him to stop, but he persisted.
Lewis kept his finger or fingers inside Crystal's vagina as he pushed or pulled her, against her will, approximately 33 feet through a gate, down a walkway, and behind the church between two windows. He then pushed her against the wall of the church, held her by her pants, and tried to bend her over as she faced the wall. By this time, Crystal's pants and underwear had come down part way. Lewis announced [165 Cal.Rptr.3d 627] that he was going to " stick it in from the back," and Crystal replied, " no." Lewis tried to insert his penis into her vagina from behind and said: " ‘ [Y]ou know you want it. Just let me put it in.’ " Crystal said " no" and told him to stop; refusing to spread her legs, she was able to prevent him from forcing his penis into her vagina.
Crystal continued to struggle with Lewis, ending up on her back on the ground. Ignoring Crystal's continued pleas to stop, Lewis pinned her down, lowered her pants and underwear, and inserted his penis into her vagina.
After Lewis stopped his assault, he walked away laughing and called her " bootsy," which is slang for " lame." Crystal texted Malysa that she had just been raped.
At home, Crystal went to the bathroom and felt a burning sensation when she urinated. She also saw blood, apparently coming from her vagina, on her underwear. Crystal burst into tears and told her mother ...