Lead Opinion
Opinion
Penal Code section 187, subdivision (a), provides that “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (All further statutory references are to the Penal Code unless otherwise indicated.) In this case, we consider and reject the argument that viability of a fetus is an element of fetal murder under the statute. As will appear, however, we also conclude that this holding should not apply to defendant herein. Accordingly, we will affirm the judgment of the Court of Appeal.
Facts
On March 1, 1991, Maria Flores, who was between 23 and 25 weeks pregnant, and her 20-month-old son, Hector, went to a check-cashing store to cash her welfare check. As Flores left the store, defendant pulled a gun from the waistband of his pants and demanded the money ($378) in her purse. When she refused to hand over the purse, defendant shot her in the chest. Flores dropped Hector as she fell to the floor and defendant fled the scene.
Flores underwent surgery to save her life. Although doctors sutured small holes in the uterine wall to prevent further bleeding, no further obstetrical surgery was undertaken because of the immaturity of the fetus. The next day, the fetus was stillborn as a direct result of its mother’s blood loss, low blood pressure and state of shock. Defendant was soon apprehended and charged with assaulting and robbing Flores, as well as murdering her fetus. The
At trial, the prosecution’s medical experts testified the fetus’s statistical chances of survival outside the womb were between 7 and 47 percent. The defense medical expert testified it was “possible for the fetus to have survived, but its chances were only 2 or 3 percent.” None of the medical experts testified that survival of the fetus was “probable.”
Although section 187, subdivision (a), does not expressly require a fetus be medically viable before the statute’s provisions can be applied to a criminal defendant, the trial court followed several Court of Appeal decisions and instructed the jury that it must find the fetus was viable before it could find defendant guilty of murder under the statute. The trial court did not, however, give the standard viability instruction, CALJIC No. 8.10, which states that: “A viable human fetus is one who has attained such form and development of organs as to be normally capable of living outside of the uterus.” The jury, however, was given an instruction that allowed it to convict defendant of murder if it found the fetus had a possibility of survival: “A fetus is viable when it has achieved the capability for independent existence; that is, when it is possible for it to survive the trauma of birth, although with artificial medical aid.” (Italics added.)
The jury convicted defendant of murder of a fetus during the course of a robbery (§ 187, subd. (a); § 190.2, subd. (a)(17)(i)), assault with a firearm (§245, subd. (a)(2)) and robbery (§ 211). The jury found that, in the commission of each offense, defendant personally used a firearm. (§ 12022.5, subd. (a).) The jury found true the special circumstance allegation. Accordingly, because the prosecutor did not seek the death penalty, defendant was sentenced to life without possibility of parole, plus five years for the firearm use.
On appeal, defendant contended that the trial court prejudicially erred by not instructing the jury pursuant to CALJIC No. 8.10. He relied on United States Supreme Court decisions that have defined viability of a fetus in terms of “probabilities, not possibilities,” when limiting a woman’s absolute right to an abortion. (See Roe v. Wade (1973)
The People argued that no viability instruction was necessary because prosecution under section 187, subdivision (a), does not require that the fetus be viable. After reviewing the wording of section 187, subdivision (a), its legislative history, the treatment of the issue in other jurisdictions, and scholarly comment on the subject, the Court of Appeal agreed with the People that contrary to prior California decisions, fetal viability is not a required element of murder under the statute. Nonetheless, the court reversed defendant’s murder conviction and set aside the special circumstance finding, on the ground that application to defendant of its unprecedented interpretation of section 187, subdivision (a), would violate due process principles.
As explained below, we agree with the People and the Court of Appeal that viability is not an element of fetal murder under section 187, subdivision (a), and conclude therefore that the statute does not require an instruction on viability as a prerequisite to a murder conviction. In addition, because every prior decision that had addressed the viability issue had determined that viability of the fetus was prerequisite to a murder conviction under section 187, subdivision (a), we also agree with the Court of Appeal that application of our construction of the statute to defendant would violate due process and ex post facto principles. (People v. King (1993)
Discussion
I. Historical development
In 1970, section 187, subdivision (a), provided: “Murder is the unlawful killing of a human being, with malice aforethought.” In Keeler v. Superior Court (1970)
The Legislature reacted to the Keeler decision by amending the murder statute, section 187, subdivision (a), to include within its proscription the killing of a fetus. (Stats. 1970, ch. 1311, § 1, p. 2440.) The amended statute reads: “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187, subd. (a).) The amended statute specifically provides that it does not apply to abortions complying with the Therapeutic Abortion Act, performed by a doctor when the death of the mother was substantially certain in the absence of an abortion, or whenever the mother solicited, aided, and otherwise chose to abort the fetus. (§ 187, subd. (b).)
The legislative history of the amendment suggests the term “fetus” was deliberately left undefined after the Legislature debated whether to limit the scope of statutory application to a viable fetus. (Comment, Is the Intentional Killing of an Unborn Child Homicide? (1970) 2 Pacific L.J. 170, 174.) The Legislature was clearly aware that it could have limited the term “fetus” to “viable fetus,” for it specifically rejected a proposed amendment that required the fetus be at least 20 weeks in gestation before the statute would apply. (Assem. Bill No. 816 (1970 Reg. Sess.).)
In 1973, the United States Supreme Court issued a decision that balanced a mother’s constitutional privacy interest in her body against a state’s interest in protecting fetal life, and determined that in the context of a mother’s abortion decision, the state had no legitimate interest in protecting a fetus until it reached the point of viability, or when it reached the “capability of meaningful life outside the mother’s womb.” (Roe v. Wade, supra,
Thereafter, in People v. Smith (Karl Andrew) (1976)
Relying on Roe v. Wade, supra,
Subsequent cases also inferred a viability limitation to convicting a defendant of fetal murder under section 187, subdivision (a). In People v. Apodaca (1978)
In People v. Smith (Robert Porter) (1987)
The R.P. Smith court reviewed the earlier K.A. Smith and Apodaca decisions and concluded that the “term viable is at once simple to understand yet elusive. For this court to hold that the term viable has a common and ordinary meaning in everyday usage, we would have to take judicial notice of that fact. We must decline the invitation to do so. [][] The trial court should have instructed the jury as to the legal definition of. . , viable. The trial judge has a sua sponte duty to instruct the jury as to all essential elements of the charged offense. [Citation.] Viability of a fetus is a constitutional prerequisite for murder of a fetus by logical extension of [Roe] v. Wade, supra,
A more recent Court of Appeal decision addressing fetal murder is People v. Henderson (1990)
The Henderson court emphasized that the statute is not vague because it contains no ambiguities. In fact, the court observed, “the statute itself makes no reference whatsoever to viability. It is decisional law interpreting section 187 which limits the criminal liability for its violation to viable fetuses.” (Henderson, supra,
This court has never directly addressed whether viability is a prerequisite to fetal murder under section 187, subdivision (a). We did, however, refuse
On appeal, the Hamilton defendant contended that the trial court’s instruction was contradictory and misled the jury into believing it could find him guilty of murdering a nonviable fetus. The defendant asserted that the jury should have been instructed pursuant to the United States Supreme Court’s pronouncement on a woman’s constitutional right to an abortion in Roe v. Wade, supra,
II. Statutory interpretation
Defendant asserts that section 187, subdivision (a), has no application to a fetus not meeting Roe v. Wade's definition of viability. Essentially, defendant claims that because the fetus could have been legally aborted under Roe v. Wade, supra,
But Roe v. Wade, supra,
Other scholarly comment agrees with Professor Parness. In her article, The Juridical Status of the Fetus: A Proposal for Legal Protection of the Unborn (1979) 77 Mich.L.Rev. 1647, 1678, Professor King states that, “Where the protectable interests of fully mature members do not conflict with those of less mature members, there is no justification for ignoring the latter’s claims. The Roe opinion was correct in recognizing a state’s legitimate interest in protecting the previable fetus. In . . . criminal law, when that interest does not oppose a protected interest of the mature mother, the state should not hesitate to vindicate it.”
Finally, as explained by Clarke Forsythe in Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms (1987) 21 Val.U.L.Rev. 563, 616: “ ‘While the decision in Roe declares that the state may not protect the potential life of the human fetus from the moment of conception, it does so only in the very narrow context of the mother’s abortion decision.’ Under Roe v. Wade, therefore, the right to abortion is encompassed within the woman’s right to constitutional privacy. The fetus is not a ‘person’ for purposes of the Fourteenth Amendment and has no constitutional rights that would outweigh the exercise of the woman’s Fourteenth Amendment rights. The fetus’ rights and the state’s interest, or lack of interest, in protecting maternal health and in protecting the life of the fetus, were distinctly balanced against the woman’s right to privacy in the context of consensual abortion.” (Fn. omitted.) Thus, when the state’s interest in protecting the life of a developing fetus is not counterbalanced against a mother’s privacy right to an abortion, or other equivalent interest, the state’s interest should prevail.
Other states have adopted statutes that criminalize the killing of a fetus. Although no state has criminalized the nonconsensual killing of a “fetus,”
The Illinois and Minnesota appellate courts have rejected equal protection and due process challenges to their feticide statutes. The challenges were based on the statutes’ asserted failure to distinguish between viable and nonviable fetuses. As discussed below, the arguments were rejected on the ground that protection of a woman’s privacy interest in the abortion context is not applicable to a nonconsensual murder of the unborn child.
In Illinois, the legislature eliminated an express viability requirement from its murder statute. The amended statute states that a “person commits the offense of intentional homicide of an unborn child” if he or she either intended to cause the death of or to do great bodily harm to the pregnant woman or her unborn child . . . [defined as “any individual of the human species from fertilization until birth].” (Ill. Rev. Stat. ch. 38, f 9-1.2(b)(l) (1987).) This statute was challenged in People v. Ford (1991)
The Illinois Appellate Court held the statute does not violate equal protection principles because it does not affect any protectible interest held by the defendant, and it bears a rational relationship to a valid legislative purpose—protecting the “potentiality of human life.” (People v. Ford, supra,
The Ford court also rejected the defendant’s due process/vagueness challenge that the “absence of statutory definitions of when ‘life’ begins and
The Illinois Appellate Court relied substantially on a decision of the Minnesota Supreme Court rejecting equal protection and due process challenges to a feticide statute by a defendant who had murdered a woman and her four-week-old embryo. (State v. Merrill (Minn. 1990)
In rejecting the defendant’s constitutional challenge that the homicide statute violated equal protection because an unborn child lacks “personhood” and is not a “person" under Roe v. Wade, supra,
Although the Illinois and Minnesota statutes specifically state that viability is not an element to be considered for their application, both Ford, supra,
Like Illinois and Minnesota, California is a “code” state, i.e., the Legislature has the exclusive province to define by statute what acts constitute a crime (§ 6), and statutory provisions must “be construed according to the fair import of their terms, with a view to effect [their] objects and to promote justice” (§ 4). Under these principles, like Illinois and Minnesota, we find no impediment to our Legislature protecting the “potentiality of human life” from homicide.
Finally, both Ford and Merrill expressly distinguish fetal homicide from the abortion issue. Our Legislature does the same. Abortion is specifically exempted from section 187 under subdivision (b)(3), which states that section 187 shall not apply if “the act was solicited, aided, abetted, or consented to by the mother of the fetus.”
We conclude, therefore, that when the mother’s privacy interests are not at stake, the Legislature may determine whether, and at what point, it should protect life inside a mother’s womb from homicide. Here, the Legislature determined that the offense of murder includes the murder of a fetus with malice aforethought. (§ 187, subd. (a).) Legislative history suggests “fetus” was left undefined in the face of divided legislative views about its meaning. (See Comment, Is the Intentional Killing of an Unborn Child Homicide?, supra, 2 Pacific L.J. 170,172-175.) Generally, however, a fetus is defined as “the unborn offspring in the postembryonic period, after major structures have been outlined.” (Sloane-Dorland Ann. Medical-Legal Dict. (1987) p. 281.) This period occurs in humans “seven or eight weeks after fertilization” (ibid.), and is a determination to be made by the trier of fact. Thus, we agree with the above cited authority that the Legislature could criminalize murder of the postembryonic product without the imposition of a viability requirement. We need not address whether different concerns might apply to an embryo. Accordingly, to the extent K.A. Smith, supra,
Although the Court of Appeal herein found, consistent with the foregoing analysis, that viability is not an element of fetal homicide under section 187, subdivision (a), it determined that its “redefinition” of the crime amounted to a “major change in the law” that, if applied to defendant, would violate due process principles. The Attorney General, while not conceding the point, does not address the Court of Appeal’s analysis and judgment on this issue. Defendant reasserts here that if we conclude viability is not an element of fetal murder, we are bound by due process principles not to apply our decision to him. We conclude that our interpretation of section 187, subdivision (a), should apply prospectively only and not to defendant.
A statute “ ‘which makes more burdensome the punishment for a crime, after its commission,’ ” violates article I, section 9, clause 3, of the United States Constitution as an ex post facto determination of criminal liability (Collins v. Youngblood (1990)
Thus, holding a defendant criminally responsible for conduct that he could not reasonably anticipate would be proscribed violates due process because the law must give sufficient warning so that individuals “may conduct themselves so as to avoid that which is forbidden.” (Rose v. Locke (1975)
In support of his contention, defendant relies on our recent decision in People v. King, supra,
In In re Culbreth, supra,
In King, we overruled In re Culbreth's “single-occasion” rule after concluding it had no support in the statutory language. But we also noted that Culbreth had been applied consistently since its pronouncement by this court, so that retroactive application would make the punishment for defendant’s crimes more burdensome after he committed them. (King, supra,
As discussed above, several Courts of Appeal have erroneously implied a viability requirement into section 187, subdivision (a). Although we are not, as in King, supra, 5 Cal.4th 59, faced with reconsidering our own precedent, the fact that a viability requirement has consistently been read into section 187, subdivision (a), supports defendant’s assertion that our proposed holding creates an unforseeable judicial enlargement of a criminal statute. (Bouie v. City of Columbia, supra,
Defendant requested the jury be instructed pursuant to CALJIC No. 8.10, which defines fetal murder as follows: “Every person who unlawfully kills a fetus with malice aforethought is guilty of the crime of murder in violation of Section 187 of the Penal Code. ... [1] In order to prove such crime, each of the following elements must be proved: H] 1. A viable human fetus was killed. 2. The killing was unlawful, and 3. The killing was done with malice aforethought. . . . [f] A viable human fetus is one who has attained such form and development of organs as to be normally capable of living outside the uterus.” The comment to the instruction states: “The term ‘fetus’ as used in Penal Code, § 187, means a viable unborn child. People v. [K.A.] Smith[, supra,]
As noted above, the trial court gave instead the following modified version of CALJIC No. 8.10: “Within the meaning of Penal Code section 187, subdivision (a), as charged in Count One, a fetus is viable when it has achieved the capability for independent existence; that is, when it is possible for it to survive the trauma of birth, although with artificial medical aid.” (Italics added.)
The Court of Appeal below assumed that the trial court’s modification of CALJIC No. 8.10 was taken in part from the decision in People v. Apodaca, supra,
In People v. Hamilton, supra,
As the Court of Appeal below observed, the wording of CALJIC No. 8.10, defining viability as “normally capable of living outside of the uterus,” while not a model of clarity, suggests a better than even chance—a probability— that a fetus will survive if born at that particular point in time. By contrast, the instruction given below suggests a “possibility” of survival, and essentially amounts to a finding that a fetus incapable of survival outside the womb for any discernible time would nonetheless be considered “viable” within the meaning of section 187, subdivision (a). Because the instruction given by the trial court substantially lowered the viability threshold as commonly understood and accepted (as defined by Roe v. Wade, supra, 410 U.S. at pp. 162-164 [35 L.Ed.2d at pp. 182-183], K.A. Smith, supra, 59 Cal.App.3d at pp. 752-753, and its progeny), we conclude that the trial court erred in instructing the jury pursuant to a modified version of CALJIC No. 8.10.
The question then is whether it is reasonably probable a result more favorable to defendant would have been reached absent the instructional error. (People v. Watson (1956)
Conclusion
We conclude that viability is not an element of fetal homicide under section 187, subdivision (a). The third party killing of a fetus with malice
We also conclude that our holding should not apply to defendant and that the trial court committed prejudicial error by instructing the jury pursuant to a modified version of CALJIC No. 8.10. We therefore affirm the judgment of the Court of Appeal.
Arabian, J., concurred.
Notes
(See Ariz. Rev. Ann. Stat. § 13-1103 (A)(5) (1989) [manslaughter]; Ill. Rev. Stat. ch. 38 §§ 9-1.2, 9-2.1, 9-3.2 (1991) [murder]; Ind. Code Ann. § 35-42-1-6 (Burns 1985) [feticide]; La. Rev. Stat. Ann. §§ 14:2(7), § 14:32.5-14:32.8 (West 1986 & 1992 supp.) [feticide]; Minn. Stat. Ann. §§ 609.266, 609.2661-609.2665, 609.268(1) (1987 & 1992 supp.) [murder, manslaughter]; N.D. Cent. Code §§ 12.1-17.1-01 to 12.1-17.1-04 (1991 supp.) [murder, manslaughter]; Utah Code Ann. § 76-5-201 et seq. (1990 & 1992 supp.) [any form of homicide].)
We do not reach the question, and it is not raised in this case, whether the doctrine of felony murder constitutionally could be applied in the circumstance where, although the fetal stage of development has been reached, the injury resulting in the death of the fetus is caused by some agency other than a defendant’s direct assault on the mother. We also do not discuss the question of premeditated murder (as opposed to felony murder) of a fetus.
Because of the multiple opinions in this case, we believe it appropriate to observe that a majority of the court concurs in our determinations that (1) viability of a fetus is not an element of fetal murder under section 187, subdivision (a), (2) the instruction defining viability in terms of mere “possibility” of survival amounted to prejudicial error under ex post facto principles, and (3) the Court of Appeal judgment reversing the conviction of murder must be affirmed.
Concurrence Opinion
California law defines murder as the “unlawful killing of a human being, or a fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a), italics added; all unlabeled statutory references are to this code.) The issue here is whether a person who kills a nonviable fetus, that is, a fetus incapable of sustained life outside the womb, may be convicted of murder. Ihe lead opinion concludes that the Legislature did not make viability an element of fetal murder, and that the federal Constitution does not prohibit a state from making criminal the unlawful killing of a nonviable fetus. (Lead opn., ante, pp. 809-810.) I agree. I write separately, however, to address some points made by the dissent, and to expand on the lead opinion’s discussion of the United States Supreme Court’s decision in Roe v. Wade (1973)
According to the dissent, our Legislature intended to restrict the crime of fetal murder to cases in which the fetus was viable. I am persuaded, however, that this was not the Legislature’s intent. The strongest evidence of legislative intent is the language used in the statute. In plain and simple terms, section 187, subdivision (a), states: “Murder is the unlawful killing of. . .a fetus, with malice aforethought.” There is not a single reference in the statute to the term “viability.” Nothing in the scant legislative history of the enactment persuades me that the Legislature intended a viability requirement.
Unlike the dissent, I attach no significance to the Legislature’s failure to rewrite the fetal murder statute in the wake of certain decisions by the Courts of Appeal that have read a viability requirement into the statute. I do not
When the appellate court in Smith, supra,
In Roe v. Wade, supra,
But when, as here, a violent assault on a pregnant woman results in the killing of the fetus she carries, the state’s power to criminalize the act as
For the reasons given above, I join the lead opinion in concluding that, to constitute fetal murder under section 187, subdivision (a), the fetus need not be viable.
The dissent raises an important concern when it points out that the lead opinion’s interpretation of the statute could result in the death penalty for a defendant who lacks any intent to kill but whose conduct while committing a felony inadvertently causes a woman, early in her pregnancy, to miscarry. (Dis. opn., post, p. 838.) This anomalous result is largely attributable to our felony-murder rule. Under that rule, even an accidental killing committed during the perpetration of certain specified felonies is first degree murder. (§ 189.) The dissent’s hypothetical scenario does illustrate, however, that a person who committed one of the specified felonies, and was unaware that a woman present during that felony was pregnant could, by causing the woman to miscarry, be subject to the death penalty. In some such cases a penalty of death, or even life imprisonment without the possibility of parole, may be wholly disproportionate to the particular defendant’s criminal culpability, and thus may violate constitutional proscriptions against cruel and unusual punishment. (U.S. Const., 8th Amend.; Tison v. Arizona (1987)
The sentence of life without possibility of parole imposed by the court in this case is not wholly disproportionate to the defendant’s criminal culpability. The defendant shot a young woman in the chest at point blank range while trying to rob her, conduct which is highly likely to result in a fatality. It was only fortuitous that defendant’s conduct did not result in the death of the woman along with the fetus she carried. On these facts, the sentence of life without parole is not cruel and unusual punishment.
For all of these reasons, I concur in the lead opinion.
Stone (S. J.), J.,
When a pregnancy is terminated by a physician or surgeon for medical necessity or at the request or with the consent of the pregnant woman, the criminal prohibition of section 187, subdivision (a), does not apply. (§ 187, subd. (b)(2) & (b)(3).)
Presiding Justice, Court of Appeal, Second District, Division Six, assigned by the Acting Chairperson of the Judicial Council.
Concurrence Opinion
Had the trial court in this case given an instruction that a fetus need not be viable under Penal Code section 187, subdivision (a) (hereafter section 187(a)), or had the law in California been ¡settled that, for purposes of section 187(a), a viable fetus meant a fetus with a “probability” or a “reasonable likelihood” of survival outside the womb, then I would not hesitate in joining the lead opinion to reverse defendant’s conviction. As it stands, however, neither is the case, Therefore, while I concur in the holding that viability of a fetus is not required under section 187(a), I must dissent from the decision to reverse.
As the lead opinion points out, the trial court below instructed the jury that to find defendant guilty of fetal murder under section 187(a), it must find that the fetus was viable. Inasmuch as our decision today holds that fetal viability is not a requirement of section 187(a), the instruction given inured to defendant’s benefit.
The trial court further instructed: “A fetus is viable when it has achieved the capability for independent existence; that is, when it is possible for it to survive the trauma of birth, although with artificial medical aid.”
This approach makes no sense. In finding that this definitional instruction was in error, the lead opinion is purporting to decide an issue that was unsettled both at the time defendant acted and at the time of his trial. (See post, pp. 819-821.) In effect, the lead opinion wanders into a wonderland to
Rather than venture into a fictitious world, I believe we should focus on whether defendant’s due process rights were violated by the giving of an instruction that defined viability in terms of possible survival. Since the unsettled status of previous case law precludes any determination whether the trial court’s instructions constituted error, we should instead look to whether the trial court’s reliance on the challenged definition was an unforeseeable judicial enlargement of section 187(a). (See Bouie v. City of Columbia (1964)
There are at least three reasons why the trial court’s definition of viability did not amount to an unforeseeable judicial enlargement of the fetal murder statute. First, although at the time defendant acted some Courts of Appeal had inferred a viability limitation to section 187(a), none had directly addressed whether a viable fetus means a fetus with a probability or a reasonable likelihood of survival outside the womb, as opposed to one with only a possibility of survival (i.e., People v. Smith (K.A.) (1976)
As indicated above, two Courts of Appeal, like the trial court below, posited that a viable fetus means a fetus that has a possibility of survival (see Apodaca, supra,
It is likely that the court in Apodaca, supra,
Taken as a whole, these decisions indicate that, even though a fetus must have a reasonable likelihood of sustained survival outside the womb for purposes of various abortion issues, a fetus must simply have a possibility of survival for purposes of California’s fetal murder statute.
Our statements in Hamilton, supra,
Affirmance of defendant’s conviction is fully consistent with our decision in People v. King (1993)
Under these circumstances, defendant cannot credibly claim that the jury instructions given in this case represented an unforeseeable judicial enlargement of section 187(a). Accordingly, defendant’s due process rights were not violated by their use.
I would affirm the conviction.
George, J., concurred.
In addition, the trial court instructed the jury that “[s]urviving the trauma of birth does not mean momentary survival, but requires survival at least through the 28 day neonatal period.” Therefore, the instructions as a whole did not, as the lead opinion suggests, tell the jury that a fetus with a possibility of survival could refer to “a fetus incapable of survival outside the womb for any discernible time.” (Lead opn., ante, p. 814.)
Tbe precise statement in Apodaca was: “A fetus is viable when it has achieved the capability for independent existence; ... a fetus is deemed viable when it is possible for it to survive the trauma of birth, although with artificial medical aid.” (
It is unclear whether the other Court of Appeal decisions are inconsistent with Apodaca and Henderson. K.A. Smith, supra,
Dissenting Opinion
I dissent. I believe the Legislature intended the term “fetus” in its 1970 amendment to Penal Code section 187 to mean a viable fetus. I rest this belief on a number of grounds.
I
First, “ ‘The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.’ ” (People v. Thomas (1992)
Here the legislative history of the 1970 amendment to Penal Code section 187 (all unlabeled statutory references are to this code) was unusual, even dramatic. On Friday, June 12, 1970, we filed our decision in Keeler v. Superior Court (1970)
To determine the Legislature’s intent, therefore, we need to understand precisely what were (1) “Robert Keeler’s actions” and (2) this court’s response to them. It is black letter law that the holding of a case is determined “ ‘by taking account (a) of the facts treated by the judge as material, and (b) his decision as based on them.’ ” (Achen v. Pepsi-Cola Bottling Co. (1951)
The material facts of Keeler, supra,
At the time of delivery the fetus weighed five pounds and was eighteen inches in length. In light of these facts Teresa’s obstetrician estimated the
The majority opinion in Keeler, which I authored for the court, demonstrates the materiality of the fact that the fetus was viable by repeatedly incorporating that fact into its legal analyses and conclusions. At the outset we stated that the issue before the court was “whether an unborn but viable fetus is a ‘human being’ within the meaning of [§ 187],” and concluded that “the Legislature did not intend such a meaning” because the common law had always required a live birth to support a charge of murder. (
Thereafter the People sharply focused our attention on the importance of viability. The People contended that the common law requirement of live birth was no longer an appropriate test of what is a human being because in modern medicine a fetus born after 28 weeks or more of gestation “has an excellent chance of survival, i.e., is ‘viable’ that an “unborn but viable” fetus is now fully capable of independent life; and that one who unlawfully terminates “such a life” should be prosecuted under section 187. (
The first ground was our reluctance to rewrite the murder statute to extend it to this new class of victims. We recognized (
The second ground was our perception of a due process bar to the charge because Robert Keeler had no notice of such a judicial enlargement of the crime of murder. We found no California case giving him notice that the killing of an “unborn but viable” fetus was covered by section 187. (
The dissenting opinion of Acting Chief Justice Burke in Keeler (
First, the dissent argued there is common law precedent to support the view that “a viable fetus such as a Baby Girl Vogt [i.e., Teresa Keeler’s baby]” is a “human being” under the California homicide statutes. (
Next the dissent argued that its view would not judicially create a new offense because the Legislature intended that the term “human being” in section 187 be construed as an evolving concept to be defined by the courts according to contemporary conditions. Noting that under those conditions the Keeler fetus would have had a 98.8 percent chance of survival, the dissent urged that the term “human being” in section 187 should include “the fully viable fetus.” (
The dissent also rejected the majority’s due process ground, asking rhetorically, “Can defendant really claim surprise that a 5-pound, 18-inch, 34-week-old, living, viable child is considered to be a human being?” (2
In sum, the dissent concluded, “There is no good reason why a fully viable fetus should not be considered a ‘human being’ under [§ 187].” (
It was thus obvious to any reader of Keeler in 1970, as it is obvious today, that the case held that the Legislature did not intend that Robert Keeler’s act of maliciously killing an “unborn but viable” fetus be prosecuted as murder under section 187. That was the holding that motivated the Legislature to act with such unusual speed upon publication of the Keeler opinions, and it was also the holding that Assembly Bill No. 816 was intended to, and did, overrule: “[Section] 187 was amended in 1970 to nullify the Keeler holding.” (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against the Person, § 450, p. 507.) It follows that by enacting the 1970 amendment to section 187 the Legislature extended the crime of murder, as Keeler refused to do, to include the malicious killing of a viable fetus. To read that amendment as further extending murder to include the killing of even a nonviable fetus, as the lead opinion does now, is to ignore the facts and holding of Keeler and the direct legislative response they so plainly triggered.
II
Another rule of statutory construction supports this conclusion.
The first case to construe the 1970 amendment to section 187 was People v. Smith (Karl Andrew) (1976)
All subsequent cases involving fetal murder in this state have likewise held or assumed that viability is an element of the crime. (People v. Hamilton (1989)
The lead opinion reviews the cases just cited, but overlooks People v. Bunyard (1988)
The lead opinion correctly asserts that until the case at bar “every prior decision that had addressed the viability issue had determined that viability of the fetus was prerequisite to a murder conviction under section 187, subdivision (a)” (lead opn., ante, p. 802). The lead opinion invokes this fact to support its conclusion that to apply its new and contrary construction of section 187 to this defendant would violate his due process and ex post facto rights. But the fact also leads logically to another and equally compelling conclusion. Since the decision in K.A. Smith, supra,
The Legislature well knows how to delete statutory elements added by judicial construction, particularly on the topic of murder. For example, section 187 defines murder as a killing with malice, and section 188 provides statutory definitions of both express and implied malice. In People v. Conley (1966)
I recognize that “Legislative silence after a court has construed a statute gives rise at most to an arguable inference of acquiescence or passive approval” (People v. Daniels (1969)
More important, the statutory language in issue here—the 1970 amendment to section 187 extending the crime of murder to the killing of “a fetus”—was itself enacted in direct and vigorous response to a judicial opinion (Keeler) with which the Legislature disagreed. If the Legislature had also disagreed a few years later with subsequent judicial opinions {K.A. Smith and its progeny) limiting the statutory prohibition against killing “a fetus” to the killing of a viable fetus, surely it would have spoken again, and equally vigorously. To this day, however, the Legislature has remained silent and taken no remedial action. In these circumstances its acquiescence is persuasive evidence of its intent.
Ill
The lead opinion is curiously proportioned. It devotes over nine-tenths of its discussion of the main issue—i.e., whether viability is an element of fetal murder—to the relatively easy task of refuting the rationale of K.A. Smith,
The lead opinion next asserts that “The Legislature was clearly aware that it could have limited the term ‘fetus’ to ‘viable fetus,’ for it specifically rejected a proposed amendment that required the fetus be at least 20 weeks in gestation before the statute woiild apply.” (Lead opn., ante, p. 803.) Here the lead opinion does not simply exaggerate the legislative history, it completely misreads it. It is true that in its original version the bill that became the 1970 amendment—Assembly Bill No. 816 as amended in the Assembly on June 24, 1970—provided that “As used in this section, ‘human being’ includes a fetus which has advanced to or beyond the 20th week of uterogestation.” It is also true that the quoted language was deleted from the bill when it was again amended in the Assembly 23 days later, on July 17, 1970.
Having erroneously concluded that the Legislature had no intent with respect to the meaning of the key word “fetus” in the 1970 amendment to section 187, the lead opinion proceeds to legislate on the subject by supplying the assertedly missing definition: “a fetus,” says the lead opinion, “is defined as ‘the unborn offspring in the postembryonic period, after major structures have been outlined.’ (Sloane-Dorland Ann. Medical-Legal Dict. (1987) p. 281.) This period occurs in humans ‘seven or eight weeks after fertilization’ (ibid.). . . .” (Lead opn., ante, p. 810, italics added.) The lead opinion repeats its new definition in concluding that the malicious killing of a fetus is murder under section 187 as long as the state can show the fetus has progressed “beyond the embryonic stage of seven to eight weeks.” (Lead opn., ante, p. 815.) For a number of reasons it is highly unlikely that such was the Legislature’s intent.
Yet that is the least of the problems with the lead opinion’s new definition of “fetus” in section 187. Because liability after seven weeks necessarily includes liability after eight weeks, we may fairly assume that prosecutors faced with the lead opinion’s imprecise definition will opt for the more inclusive figure and charge murder when the fetal death occurs at seven weeks. Do my colleagues have any idea what a seven-week-old product of conception looks like?
To begin with, it is tiny. At seven weeks its “crown-rump length”—the only dimension that can be accurately measured—is approximately 17 millimeters, or slightly over half an inch. (Arey, Developmental Anatomy (1965) p. 104.) It weighs approximately three grams, or about one-tenth of an ounce. (Eichler, Atlas of Comparative Embryology (1978) p. 186.) In more familiar terms, it is roughly the size and weight of a peanut.
If this tiny creature is examined under a magnifying glass, moreover, its appearance remains less than human. Its bulbous head takes up almost half
The contrast between such a tiny, alien creature and the fully formed “5-pound, 18-inch, 34-week-old, living, viable child” in Keeler (2 Cal.3d at p. 644 (dis. opn. of Burke, Acting C. J.)) is too obvious to be ignored. I can believe that by enacting the 1970 amendment the Legislature intended to make it murder to kill a fully viable fetus like Teresa Keeler’s baby. But I cannot believe the Legislature intended to make it murder—indeed, capital murder—to cause the death of an object the size of a peanut.
IV
It is even more unlikely that the Legislature intended many of the consequences of the lead opinion’s new definition of “fetus” in section 187. That definition should therefore be reconsidered in light of the settled rule that “When uncertainty arises in a question of statutory interpretation, consideration must be given to the consequences that will flow from a particular interpretation. [Citation.] In this regard, it is presumed the Legislature intended reasonable results consistent with its expressed purpose, not absurd consequences. [Citations.]” (Harris v. Capital Growth Investors XIV, supra,
First, under the lead opinion’s definition a person may be subject to a conviction of capital murder for causing the death of an object that was literally invisible to everyone, and hence that the person had no reason to know even existed. A woman whose reproductive system contains an immature fetus a fraction of an inch long and weighing a fraction of an ounce does not, of course, appear pregnant. In fact, if she is one of many women with some irregularity in her menstrual cycle, she herself may not know she is pregnant: “quickening” does not occur until two or three months later. (Keeler, supra, 2 Cal.3d at p. 625, fn. 5.) Unless such a woman knows she is pregnant and has disclosed that fact to the defendant, the defendant has no way of knowing she is carrying a fetus.
Nor is this problem limited to fetuses that are “seven or eight” weeks old. Although the length of time that a woman can be pregnant without her
The jury evidently agreed with Dr. Moore. In both count 2 (attempted premeditated murder) and count 3 (robbery) the information alleged the five-year enhancement provided in section 12022.9. The elements of that enhancement are that during the commission of a felony a defendant who (1) “knows or reasonably should know that the victim is pregnant” (2) intentionally inflicts injury on her (3) that results in termination of her pregnancy. The instructions emphasized that to find the allegation true the jury must find “the necessary mental state . . . that defendant knew or reasonably should have known that the victim was pregnant.” The jury returned verdicts finding the allegation untrue on both counts. Because the second and third elements of the allegation were undisputed and found true by the jury in other verdicts,
Yet the expert testimony agreed that Flores was between 23 and 25 weeks—approximately 6 months—pregnant on the date of the shooting. This is the very threshold of viability: an expert witness reported on a recent study showing that at 23 weeks the survival rate of the fetus is approximately 7 percent, at 24 weeks 35 percent, and at 25 weeks 47 percent. The case at bar thus demonstrates how long the risk of liability for fetal murder may run under the lead opinion’s view before the actor either knows or has reason to know that the victim of the offense even exists. I cannot believe the Legislature intended such an enlargement of liability for the crime of capital murder.
Nor is the problem solved by the fact that section 187 imposes such liability only if the defendant kills the fetus “with malice aforethought.”
Although no one would realize it from reading the lead opinion, the case at bar is truly novel: it is the first reported case in California in which a person has been convicted of fetal murder without knowing or having reason to know of the existence of the victim. In all but one of the prior cases the defendant knew very well that the woman he assaulted was pregnant; he intended at least to kill the fetus, and thus manifested express malice toward the fetus within the meaning of section 187. (See People v. Saille, supra,
Two of these cases closely resembled the facts of Keeler, supra,
Three other cases presented a related scenario in which the husband, or another acting on his behalf, knew the wife was pregnant and killed her in order to be rid of both her and the fetus in one stroke, thus manifesting express malice towards both victims. (People v. Hamilton, supra,
I have no difficulty believing that by enacting the 1970 amendment the Legislature intended to punish such intentional killing as fetal murder. But that is not this case: here defendant did not intend to kill the Flores fetus, for the simple reason that, as the jury found, he neither knew nor had reason to know it existed. Indeed, he did not even intend to kill Flores herself: although he was charged in count 2 with the deliberate and premeditated
Lacking proof of both malice and premeditation, the prosecutor sought a murder conviction on a theory that did not require him to prove defendant intended to kill the invisible fetus—the theory of felony murder. That theory had been invoked in the only prior fetal murder case that did not involve an intentional killing of the fetus, People v. Henderson, supra,
First, the defendant must have been well aware that Angie was pregnant. At the time of her death her fetus was 30 weeks—IVi months—old: it was therefore both viable and visible. And, contrary to the case at bar, Angie was not a stranger whom the defendant had encountered only moments before the murders; rather, the defendant had moved in with Angie and her husband and had lived with them in their apartment for some six weeks before robbing and killing them. Second, although the jury convicted the defendant of two counts of first degree murder in the deaths of Ray and Angie, they convicted him of only second degree murder in the death of Angie’s fetus. Yet under the felony-murder rule the murder of the fetus was murder in the first degree as a matter of law no less than the murders of its parents (§ 189), and the jury were doubtless so instructed. By declining to follow that law and returning instead a verdict of murder in the second degree, the jury apparently exercised their power of nullification. (See generally, People v. Dillon (1983)
But if the result was harsh in People v. Henderson, supra,
Here the prosecutor left no doubt that his theory was felony murder: as he explained to the jury in closing argument, “In some homicide cases there are many different theories of murder that may be involved, depending on the facts in the case. In this particular case there is only one murder theory, and that is what we call felony murder . . . .”
It has been clear at least since People v. Dillon, supra,
The instructions confirmed the prosecutor’s advice. The court first told the jury that to convict defendant of murder in this case the prosecution need prove only that “1. A viable human fetus . . . was killed, [f] 2. The killing was unlawful. [ft| 3. The killing occurred during the commission or attempted commission of a robbery.” There was no need to prove intent to kill or any other kind of malice aforethought. Nor was it necessary that the fetus be the object of the underlying felony. (See, e.g., People v. Welch (1972)
On the record in this case an affirmative finding of the third element—i.e., that the killing of the fetus occurred during the commission of a robbery or attempted robbery—was foreordained, because defendant admitted in his direct testimony that he intended to rob Flores and his counsel conceded the fact in closing argument. But the finding not only made the killing felony murder, it had two additional consequences. As its second consequence, it fixed the degree of the murder at the first degree (§ 189) even though, as explained above, the jury found that defendant did not intend to kill anyone:
Defendant was sentenced to life imprisonment without possibility of parole. He was 20 years old at the time of the events. He had no prior felony convictions, and only two minor juvenile offenses which the prosecutor himself characterized as an “insignificant criminal history.” Viewing the statutory penalty of life imprisonment without possibility of parole in the light of these circumstances, the prosecutor conceded, “It seems in a sense like a waste of a young life and to some degree it must be considered that.” The court agreed that defendant “has an insignificant criminal background,” and echoed the prosecutor’s view of the sentence by saying, “one of the emotional issues that underlies the sentence here is that it is so sad to see a young life thrown away. And that’s what’s happened here with Mr. Davis.”
This draconian result was possible, of course, only because of the draconian nature of the felony-murder rule itself. As we observed in People v. Dillon, supra, 34 Cal.3d at pages 476-477, footnote omitted, “the two kinds of first degree murder in this state differ in a fundamental respect: in the case of deliberate and premeditated murder with malice aforethought, the defendant’s state of mind with respect to the homicide is all-important and must be proved beyond a reasonable doubt; in the case of first degree felony murder it is entirely irrelevant and need not be proved at all. From this profound legal difference flows an equally significant factual distinction, to wit, that first degree felony murder encompasses a far wider range of individual culpability than deliberate and premeditated murder. It includes not only the latter, but also a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident; it embraces both calculated conduct and acts committed in panic or rage, or under the dominion of mental illness, drugs, or alcohol; and it condemns alike consequences that are highly probable, conceivably possible, or wholly unforeseeable.”
Under the lead opinion’s new definition of “fetus” another category will be added to this litany: first degree felony murder will be extended to include any death, in the commission of a listed felony, of a nonviable and invisible fetus that the actor neither knew nor had reason to know existed. And that liability will not be limited to cases in which, as here, the defendant
Before today’s decision, such a youth would be guilty at most of second degree burglary (§§ 459, 460; see, e.g., People v. Corral (1943)
I cannot believe the Legislature intended the 1970 amendment to accomplish so absurd a result—especially when that amendment affected a statute that requires a finding of “malice aforethought” to support a conviction (§ 187) and had nothing to do with the statute that defines felony murder (§ 189). Yet this is where the lead opinion’s definition of “fetus” inexorably takes us.
In addition, by thus expanding the scope of the felony-murder rule the lead opinion violates another settled policy of this court: almost three decades ago, in the leading case of People v. Washington (1965)
The cases also illustrate that irrational punishments may provoke one of two undesirable responses. First, as apparently occurred in People v. Henderson, supra,
Next, the lead opinion’s new definition of “fetus” will raise difficult questions of causation in prosecutions for murder of a nonviable fetus. Although a conviction on a felony-murder theory does not require proof of a “strict causal relation” between the felony and the killing (see, e.g., People v. Welch, supra,
Accordingly, the mere fact that a fetus aborts at some time after the woman carrying it is intentionally or unintentionally struck by another does not necessarily mean the act was a “substantial factor” in causing the fetal death. In cases in which the fetus was nonviable and immature the prosecutor could well have difficulty in proving causation, or, conversely, the jury could be misled into convicting the actor of fetal murder when no such murder in fact occurred. Again I cannot believe the Legislature intended either result by the 1970 amendment to section 187.
V
Finally, the lead opinion’s construction of the 1970 amendment will make our murder law unique in the nation in its severity: it appears that in no other state is it a capital offense to cause the death of a nonviable and invisible fetus that the actor neither knew nor had reason to know existed.
To begin with, in the majority of states the killing of a fetus is not a homicide in any degree: “The majority of jurisdictions which have confronted the issue has followed Keeler,
There are, of course, jurisdictions that have enacted statutes criminalizing the killing of a fetus.
First, in at least 13 jurisdictions the killing of a fetus is not criminal unless the fetus is viable or has reached a gestational age significantly more
In South Carolina the state’s highest court has adopted, pursuant to its common law power to declare substantive criminal law, the rule that the intentional killing of a fetus is murder if the fetus was viable. (State v. Horne (1984)
Eight states have enacted statutes criminalizing the killing of “an unborn quick child.” In three of those states the act is criminal if the unborn child is killed by “any” injury to the mother. (Nev. Rev. Stat. § 200.210; Okla. Stat. Ann. tit. 21, § 713; Wash. Rev. Code Ann. § 9A.32.060.) In the remaining five states, however, the act is criminal only if the unborn child is killed “by any injury to the mother of such child which would be murder if it resulted in the death of such mother.” (Fla. Stat. Ann. § 782.09; Ga. Code Ann. § 16-5-80; Mich. Comp. Laws Ann. § 750.322; Miss. Code Ann. § 97-3-37; R.I. Gen. Laws Ann. § 11-23-5.) Yet in seven of those states—all except Georgia—the resulting fetal homicide is punished only as manslaughter, while in Georgia it is deemed “feticide.” As noted, in all eight states there is no crime unless the unborn child was “quick” when it was killed. In all but one of those states the statute does not define “quick”; as explained herein-above, “quickening” is traditionally said to occur between the 16th and 20th weeks of pregnancy. And in the one state that does define the term, the legislature has given “quick” the same meaning as “viable”: “For the purposes of this section ‘quick child’ shall mean an unborn child . . . who is so far developed and matured as to be capable of surviving the trauma of birth with the aid of usual medical care and facilities available in this state.” (R.I. Gen. Laws Ann. § 11-23-5, 3d par.)
The second category of jurisdictions is composed of those in which the legislature has expressly declared that the killing of a product of conception
Three other states have enacted special statutes making the killing of a fetus homicide under various circumstances, but none punishes fetal murder as severely as our section 187. Thus in Illinois the offense is called “intentional homicide of an unborn child,” and the statute defines an unborn child as “any individual of the human species from fertilization until birth.” (Ill. Comp. Stat. Ann. ch. 720, § 5/9-1.2, subd. (b).) But the statute further provides that the act is not homicide unless the actor actually “knew that the woman was pregnant.” (Id., subd. (a)(3).)
The third and last category of jurisdictions is composed of those in which the statute neither prescribes a minimum gestational age for a conviction of fetal murder nor expressly declares that it applies regardless of gestational age; rather, the statute is facially silent on the matter. California is such a jurisdiction, and there are at least five others. Of these Utah is the only state that, like California, criminalizes the killing of a fetus under its general murder statutes: it defines homicide as the killing of “another human being, including an unborn child.” (Utah Code Ann. § 76-5-201, subd. (1)(a).) But unlike California, in Utah the crime is a capital offense only if the actor caused the death of the unborn child “intentionally or knowingly,” even in a felony-murder case. (Id., § 76-5-202, subd. (1)(d).) If, as in the case at bar, the death occurred in the commission of a listed felony but the actor did not kill “intentionally or knowingly,” the crime is noncapital murder (id., § 76-5-203) punishable by imprisonment for not less than five years (id., § 76-3-203).
In the remaining four states the offense is given special treatment and is punished much less severely than in California. In two of these states the
Robert Keeler’s act of assaulting his estranged wife for the express purpose of terminating her pregnancy by knowingly and intentionally killing her fully viable fetus would have been a crime in all the jurisdictions discussed above that have abrogated the common law rule. It would certainly be a crime in California today. But I cannot believe that in amending section 187 to make that act a crime the Legislature also intended to make California the only state in the Union in which it is a capital offense to cause the death of a nonviable and invisible fetus that the actor neither knew nor had reason to know existed. Yet this, again, is where the lead opinion’s construction of the 1970 amendment inexorably takes us. I dissent from that construction.
VI
I also dissent from the lead opinion’s disposition of this appeal. I agree with the lead opinion that the instruction defining viability in terms of mere “possible” survival was prejudicial error. I would nevertheless reverse the judgment of the Court of Appeal because it remands the murder count for a new trial, and would direct the Court of Appeal to order the trial court to enter a judgment of acquittal on that count. (§§ 1260, 1262; see, e.g., People v. Carlson (1974)
The prosecution thus took its best shot at proving viability, and on the facts of this case was wholly unable to do so. In a retrial the medical facts will not change: a nonviable fetus will remain nonviable. Given this reality, it is highly unlikely that the prosecution will be able to make a better case for viability, let alone prove that element beyond a reasonable doubt. In these circumstances no purpose will be served by compelling the physician witnesses to repeat their lengthy testimony or by putting the survivors—Mrs. Flores and her family—through the ordeal of once again reliving the events in public. Rather, we should exercise our discretion to end this litigation so that the defendant may serve the multiple and consecutive terms of imprisonment to which he was sentenced for the crimes he actually committed.
The court’s principal rationale (
The opinion was authored by Justice Arguelles and joined in by five justices, including the Chief Justice and Justices Panelli and Eagleson; Justice Kaufman concurred fully in the portions of the opinion quoted hereafter.
The same legislation likewise added a sentence to section 189 declaring that “To prove the killing was ‘deliberate and premeditated,’ it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.” (Stats. 1981, ch. 404, § 7, p. 1593, italics added.) This court had construed section 189 to the contrary in a series of decisions beginning with People v. Wolff (1964)
“Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." (Roe v. Wade (1973)
In turn, the Therapeutic Abortion Act had adopted the 20-week cutoff date from its predecessors in other jurisdictions. The common law prohibited abortion after “quickening” (see, e.g., Keeler, supra,
The defect is not cured by the lead opinion’s additional remark that “This period occurs in humans ‘seven or eight weeks after fertilization’ (ibid.), and is a determination to be made by the trier offact.” (Lead opn., ante, p. 810, italics added.) The trier of fact does not determine the legal issue of the age at which liability for fetal murder attaches; that is the sole responsibility of the Legislature. If the Legislature determines that such liability attaches, say, at seven weeks, the sole task of the trier of fact is to determine from the evidence whether the particular fetus in the case before it had or had not reached that age.
Even at eight weeks the product of conception measures only one inch and weighs only three-quarters of an ounce. (20 Encyclopaedia Britannica (15th ed. 1990) p. 412.) It is then the size of a peanut in its shell.
The jury convicted defendant of murdering the fetus (count 1) and found true the allegation that he intentionally inflicted great bodily injury on Flores (counts 2 and 3).
At the sentencing hearing the court approved that verdict: “I don’t think he intended to kill the lady. I think the jury made the right decision on that.”
The jury exercised their power of nullification as to another murder charge as well. Ray and Angie’s one-year-old son, Raymond, Jr., was likewise killed in the commission of the robbery, but the prosecution was unable to prove the specific cause of his death. Apparently for this reason the jury returned a verdict of voluntary manslaughter in the death of Raymond, Jr., even though the defendant had correctly been charged with first degree murder in that count. Interestingly, in a separate trial a second jury heard the same evidence against Velma Henderson, Philip’s wife, and returned first degree murder verdicts as to all four victims; on a defense motion at sentencing, however, the court reduced Velma’s convictions to the same
The quotation is from the lead opinion in People v. Dillon, supra,
Indeed, to reach this result it would not even be necessary for the youth to touch the woman. It would be sufficient if the stress induced by the sight and sounds of the oncoming youth and the pursuing guard were severe enough to cause her to faint, fall, and thereby miscarry. (Cf. People v. Hernandez (1985)
The lead opinion seems to recognize this problem, at least in part, by protesting that it does not reach the question “whether the doctrine of felony murder constitutionally could be applied” when the fatal injury to the fetus is caused by an agency other than a defendant’s “direct assault on the mother.” (Lead opn., ante, p. 810, fn. 2, italics added.) The problem, however, is not so much the cause of the fatal injury to the fetus as it is the viability and visibility of the fetus itself. If the fetus is viable and visible, the defendant is on notice of the mother’s condition and under settled felony-murder principles should be liable for the death of the fetus even without committing a “direct assault on the mother.” It is when the fetus is nonviable and invisible that the lead opinion’s construction of section 187 may lead to absurd consequences of the kind discussed above.
Spontaneous abortion is the medical term for miscarriage. (Stedman’s Medical Dict. (5th Lawyers’ ed. 1982) p. 3.)
Like the lead opinion, I do not refer in this context to abortion laws.
The zygote is the product of conception after fertilization but before the embryo stage. (26 Encyclopaedia Britannica, supra, p. 710.)
It is clear that actual knowledge of the pregnancy is required. The statute’s predecessor was a feticide law criminalizing the act if the actor “knew, or reasonably should have known under all of the circumstances, that the mother was pregnant.” (Former Ill. Rev. Stat. ch. 38, par. 9-1.1, subd. (a)(4), italics added.) The Illinois Legislature deleted the italicized clause when it substituted the present wording in 1987; since that date the prosecution has been required to prove actual knowledge of the pregnancy for a conviction of intentional homicide of an unborn child. For example, in the case relied on by the lead opinion, People v. Ford (1991)
The North Dakota statute adds a qualifying clause to the definition: an unborn child is a conceived but not yet bom offspring “which, but for the action of the actor would beyond a reasonable doubt have subsequently been born alive.” (N.D. Cent. Code § 12.1-17.1-01, subd. 3, italics added.) I find no North Dakota case construing this ambiguous language. Lacking such guidance, I am inclined to believe that the added clause does not impose a viability requirement—if it were not for the crime, even an embryo or a previable fetus would have “subsequently” been born alive—but was meant to limit liability to cases in which the defendant’s act was the sole cause of the premature death.
The Minnesota statutory scheme is very thorough, separately defining the offenses of murder of an unborn child in the first, second, and third degrees, manslaughter of an unborn child in the first and second degrees, “criminal vehicular operation resulting in death to an unborn child,” and death of an unborn child in the commission of an unlisted felony. (Minn. Stat. Ann. §§ 609.2661-609.2665, 609.21, subd. 3, 609.268, subd. 1.) In addition, most of these offenses can be committed in several ways; for example, in what appears to be a classic case of a state legislature’s response to local conditions, in Minnesota the statute specifically makes it second degree manslaughter to cause the death of an unborn child by shooting its mother “as a result of negligently believing her to be a deer” (id., § 609.2665, subd. (2)).
The quoted wording of the South Dakota statute shows the lead opinion is incorrect in asserting that “no state has criminalized the nonconsensual killing of a ‘fetus’ . . . .” (Lead opn., ante, p. 807.)
The testimony of two equally qualified and experienced physicians called by the defense was to the same effect.