People v. Davis

May [No. 1994.] S033327. PEOPLE,

THE Plaintiff and Respondent, DAVIS,

ROBERT A. Defendant and Appellant.

Counsel Defender, under appointment Supreme Francis Public Bardsley, J. Defenders, Court, Nichols, Public Gary Deputy E. Thorna and R. Jeffrey Defendant and Appellant. Williamson, General, Chief Assistant Attorney George

Daniel E. Lungren, General, General, Schons, Howard M. Attorney Attorney W. Assistant Gary Klahn, General, B. and Pamela K. Wayne, Deputy Attorneys Janelle Davis Respondent. for Plaintiff and Baldwin, Meehan, (Alameda) Attorney

John J. District and William M. as Amici Curiae on behalf of Plaintiff Attorney, Assistant District Respondent.

Opinion LUCAS, (a), that provides C. J. Code section subdivision Penal fetus, malice “Murder a with being, is the unlawful of a human (All are Penal unless statutory further references to the Code aforethought.” case, indicated.) In and the reject argument otherwise this we consider will fetus is element of fetal murder under the statute. As viability of a however, to we conclude that this should not holding apply also appear, we of the Court of defendant herein. will affirm Accordingly, judgment Appeal.

Facts Flores, weeks On March Maria who was between and 25 Hector, son, her store check-cashing and 20-month-old went to a pregnant, store, a pulled gun to cash her welfare check. As left the defendant Flores ($378) in her money from waistband of his and demanded the pants her in the When she refused to hand over the defendant shot purse. purse, chest. as she fell and defendant fled the Flores Hector floor dropped scene. doctors small

Flores underwent to save her life. sutured surgery Although holes uterine wall to further no further obstetrical prevent bleeding, The next surgery immaturity day, was undertaken because of the of the fetus. loss, blood the fetus was stillborn a direct result of its mother’s blood low as charged and state of Defendant was soon and pressure apprehended shock. Flores, her The with well as fetus. assaulting robbing murdering 190.2, (§ robbery-murder. circumstance of charged special prosecution (a).) subd. trial,

At medical testified the fetus’s statistical prosecution’s experts 7 and chances of survival outside the womb were between 47 percent. it for the fetus to have defense medical survived, testified was expert “possible its were None of the medical only percent.” but chances or 3 testified was experts that survival of fetus “probable.” (a), a fetus Although section subdivision does not expressly require medically be viable can before statute’s be provisions applied defendant, criminal the trial court followed several Court of deci- Appeal sions and instructed it find the was it jury that must fetus viable before find could not, however, defendant of murder The trial court did guilty under statute. instruction, 8.10,

give the standard No. CALJIC which “A states that: viable human fetus one has such who attained form development organs as to outside of the normally capable living however, uterus.” The jury, given an instruction that allowed it to convict defendant of murder if it had found fetus possibility “A survival: fetus is viable when it has achieved the capability indepen- existence; is, dent when is possible for it survive the trauma of birth, although added.) (Italics artificial medical aid.”

The convicted jury defendant of murder of a fetus the course of during 187, 190.2, (§ a robbery (a); subd. (a)(17)(i)), subd. with assault a fire § (§245, (a)(2)) that, arm (§ 211). subd. and robbery The jury found offense, the commission of each defendant used a firearm. personally 12022.5, (§ (a).) subd. found jury true circumstance special allega tion. Accordingly, because the did prosecutor not seek death penalty, defendant was sentenced to life without five possibility parole, plus years firearm use.

On defendant contended appeal, that the trial prejudicially court erred by not instructing to jury pursuant CALJIC No. He relied on 8.10. United States Supreme Court decisions that have defined of a fetus terms viability “probabilities, when possibilities,” limiting a woman’s absolute right (See 113,163 147, to an abortion. Roe Wade U.S. L.Ed.2d [35 182-183, 93 S.Ct. [defining as that viability fetal point development 705] fetus, born, if when a would be outside capable living normally womb]; 674, Planned Casey (1992)_U.S._[120 Parenthood v. L.Ed.2d 112 S.Ct. definition].) Roe’s [reaffirming 2791] viability By analogy to the cases, abortion defendant asserted that a fetus is not viable under section 187, subdivision (a), unless “there is a reasonable likelihood of sus- [its] womb, tained survival outside the with or (Co- without artificial support.” 379, 596, 605, lautti v. Franklin 439 U.S. L.Ed.2d 99 S.Ct. Thus, claimed, as a “reason- defining viability than defendant rather survival,” the jury have instructed the trial court should able possibility in CALJIC No. 8.10. described threshold higher “probability” under because necessary that no instruction argued viability The People the fetus (a), does not that require under section subdivision prosecution (a), its of section subdivision wording After reviewing be viable. and jurisdictions, of the issue other the treatment legislative history, agreed the Court of subject, Appeal comment on scholarly decisions, is not a fetal viability that California contrary prior People Nonetheless, the court reversed element murder under the statute. required find- and aside the circumstance special defendant’s murder conviction set inter- its unprecedented that to defendant of ground application on ing, (a), process princi- would due of section subdivision violate pretation ples. below, the Court of Appeal we with the agree

As explained 187, subdivision of fetal murder under section is not an element viability instruction on (a), that the statute does not require and conclude therefore addition, every murder conviction. because as a to a viability prerequisite had determined that that had addressed the issue viability decision prior a murder conviction under of the fetus was prerequisite (a), we also with the Court of agree Appeal application subdivision would violate due process of our construction of the statute to defendant (1993) 5 (People King ex facto Cal.4th post principles. of a criminal enlargement 851 P.2d

Cal.Rptr.2d 27] [unforseeable law].) address Accordingly, in manner ex facto we post statute operates with the Court of the instructional issue raised defendant and agree jury erred when it instructed the that the trial court Appeal prejudicially law, CALJIC No. then-existing to a modified version of contrary pursuant TÍius, 8.10. we conclude we should affirm the Court of Appeal judgment robbery reversing its the assault and counts entirety (affirming murder). of judgment

Discussion

I. development Historical 1970, 187,

In the unlawful (a), section subdivision “Murder is provided: In Superior of a human with malice Keeler v. killing being, aforethought.” 481, 617, Court 470 P.2d 40 A.L.R.3d Cal.Rptr. 619 [87 420], a carried a of the court held that a man who had killed fetus majority murder because the by his wife could not be estranged prosecuted

803 view) (consistent law intended the Legislature probably with the common “human mean a who had been born alive. being” to phrase person The to Legislature by amending reacted the Keeler decision statute, 187, (a), include proscription section subdivision within its 1311, 1, (Stats. 2440.) a killing of fetus. The amended statute p. ch. § fetus, reads: “Murder the unlawful or a human being, (§ malice (a).) The amended statute aforethought.” subd. specifically that it provides does not to abortions with the apply complying Therapeutic Act, Abortion by a doctor when the death of performed mother abortion, substantially certain the absence an whenever the mother solicited, aided, (§ (b).) and otherwise chose abort fetus. subd.

The legislative term history amendment “fetus” was suggests deliberately left undefined after the debated whether limit the Legislature scope (Comment, of statutory application to a viable fetus. Is the Intentional Killing Unborn 2 Child Homicide? Pacific The L.J. Legislature was aware clearly could have limited the term “fetus” to fetus,” “viable for it specifically rejected a amendment that re- proposed the fetus at quired least 20 weeks in gestation before statute would (Assem. (1970 Bill apply. Sess.).) No. 816 Reg.

In the United States Supreme Court issued decision that balanced a mother’s constitutional privacy interest her body against state’s life, interest in protecting fetal and determined that in the context of a decision, mother’s abortion the state had no legitimate interest protecting a fetus until it reached the or when it point viability, reached the Wade, “capability life meaningful (Roe outside the mother’s womb.” supra, U.S. p. at 183].) L.Ed.2d at p. [35 court explained that “[viability usually placed (28 at about seven weeks) months but may earlier, occur even at (Id. weeks.” at p. L.Ed.2d at At [35 determined, point viability, court the state may (Id. restrict abortion. at 182-183].) L.Ed.2d at pp. [35 Thereafter, in People (Karl Andrew) v. Smith (1976) 59 (hereafter Smith), 498] K.A. Court construed the Appeal term (a), “fetus” subdivision to mean a “viable fetus” as Wade, defined Roe U.S. 162-164 pages L.Ed.2d at Smith, 182-183], wife, pages. K.A. the defendant had beaten his who was 12 to 15 weeks pregnant, he did saying not want the The wife baby live. trial, miscarried the ferns as a direct result beating. At the parties that the stipulated fetus was not viable miscarriage. (59 at time of the 753-754.) at Cal.App.3d pp. ground dismissal of the murder on the charge court’s affirming

In the trial death, held that time of its the K.A.Smith court viable at the the fetus was not (a), element of murder under section subdivision an essential viability time life to the destroy independent cannot human prior that “one reasoning Smith, 756.) (K.A. at supra, p. 59 Cal.App.3d it has come into existence.” Wade, noted Smith court supra, 410 U.S. the K.A. on Roe v. Relying the first trimester during to abort the fetus right a mother’s constitutional trimester, and her to do so right during gestation qualified second fetus until the state no interest viability, protecting observed that has that, “[i]mplicit The court concluded from either abortion or murder. law the destruction that as a matter of constitutional Wade is conclusion that such of human life. It follows taking of a nonviable fetus is not homicide, whether form of destruction cannot constitute murder or other Smith, mother, (K.A. a father . . . or a third person.” committed aby “ defined 757.) ‘having The K.A. Smith court viability at Cal.App.3d p. normally capable attained such form and as to development organs ” Internat. (Id. Webster’s New outside the uterus.’ at living p. quoting (3d 1966) 2548.) Dict. ed. p. a defend- convicting cases inferred a limitation to also

Subsequent (a). People Apodaca In ant fetal murder under section subdivision 830], from a involving appeal Cal.App.3d murder, defendant’s rejected fetal the Court of Appeal conviction of (a), unconstitutionally vague contention that section subdivision of the fetus stage it does not specify requisite development because 485.) The court also (Apodaca, supra, rejected covered the section. at by the state’s power charge the defendant’s alternative argument fetus child should be limited to a defendant with the murder of an unborn (Id. 487.) Apodaca held that that is viable when it is killed. court trial court had erred need not reach the constitutional whether the question because uncontro- viability, to define the word “fetus” terms of failing that the fetus was viable during verted medical had indicated trial testimony (Id. at the time it was murdered. at p. (Robert People Porter) v. Smith (hereafter was accused of the Smith), R.P. the defendant

Cal.Rptr. 142] objection, defendant’s double murder of a woman and her fetus. Over the submitted had instruction separate trial court instructed the to a jury pursuant ” “ (Id. child.’ at p. viable unborn defined a fetus as ‘a conviction, 1513.) On defendant complained after the appeal ” “ that “without a instruction ‘viable’ People’s failed to define the term the instructions to definition of interpreted have viability the could jury mean that the would be facts question viability by showing] [answered alive time (Id. 1513.) at the at The killing.” p. [fetus] defendant insisted that the trial court should have defined the term viable to “ mean an ‘unborn child . . . existence outside the capable independent ” (Ibid.) mother.’

The R.P. Smith court reviewed the earlier K.A. Smith and deci Apodaca sions and concluded that the “term viable is at once to understand simple yet elusive. For this court to hold that the term viable has a common and ordinary meaning everyday usage, we would have to take notice judicial of that fact. We must decline the invitation to do so. The trial court [][] , should have instructed the jury definition of. The legal . viable. trial has a judge sua sponte to instruct the all duty jury as to essential elements of the charged offense. Viability of fetus is a consti [Citation.] tutional for prerequisite murder of a fetus extension by logical of [Roe] Wade, supra, 410 U.S. 113. The trial court erred failing jury instruct Smith, as to the legal (R.P. meaning of term viable.” supra, 188 1514.) Cal.App.3d at p. Although court held that the erred in trial court viable, not instructing the under jury the “legal definition” of the term concluded the defendant had not suffered because “the record prejudice clearly the existence of the element of demonstrate[d] of the fetus.” viability (Ibid.)

A more recent Court of Appeal decision fetal murder addressing v. Henderson (hereafter Cal.App.3d 837] There, Henderson). the defendant argued his second degree conviction for the killing of a fetus should be reversed because section (a), subdivision is unconstitutionally vague. defendant asserted that the viability requirement imposed by decisional law “is vague so that it fails to provide notice to a perpetrator that his or her violent act may be prohibited (Henderson, this statute.” 1157.) at Cal.App.3d

The Henderson court emphasized that the statute is not vague because it fact, contains no observed, ambiguities. the court “the statute itself makes no reference whatsoever to viability. It is interpreting decisional law section 187 which limits the criminal liability its violation to viable for fetuses.” (Henderson, supra, 225 Cal.App.3d added.) at p. italics The court then determined that the definition of viability has been well established. Relying Smith, on R.P. supra, 188 Cal.App.3d Henderson court concluded “ that a fetus is viable ‘when it has achieved the capability independent ” (Henderson, existence.’ supra, 225 This court has never directly whether addressed is a prerequisite to fetal murder did, however, under (a). subdivision We refuse 806 in People on was v. viability

to consider whether instruction sufficient There, 701, 730], 1142 P.2d Hamilton 774 [259 seven-month-old was convicted of the murder of his wife and defendant Smith, supra, court from 59 fetus. The trial combined K.A. language 757, at 76 Apodaca, supra, Cal.App.3d at and v. Cal.App.3d page “ 487, ‘must find reasonable jury beyond and instructed that page is, viable, existence or doubt the fetus that capable independent that was normally such and as to be organs attained form having development it is uterus. A fetus is viable when living outside the deemed capable of birth, medical although to survive trauma of possible for it artificial ” 1171, added.) (Hamilton, supra, Cal.3d at italics aid.’ 48 On defendant that the trial court’s instruc- the Hamilton contended appeal, him find misled the into it could contradictory jury believing tion and that the jury The defendant asserted guilty murdering nonviable fetus. should the United States Court’s pursuant Supreme have been to instructed v. an abortion Roe right on woman’s constitutional pronouncement Wade, 113, and definition of supra, viability 410 U.S. the subsequent Franklin, at supra, v. 439 U.S. adopted the Court of Colautti Appeal 604-605], viable under our 388 L.Ed.2d at that a fetus is not page pages [58 “ unless is a likelihood of sustained statute ‘there reasonable [its] ” womb, (Hamilton, survival with or artificial support.’ outside without need not reach the supra, Cal.3d at We determined we 48 claim, that the fetus merits of the because there was uncontradicted evidence Hence, (Id. 1171-1173.) at had attained under test. viability any accepted pp. have we have never determined whether Courts of Appeal properly our included as an murder. element of the crime fetal interpretation

II. Statutory 187, (a), section has no applica Defendant asserts that subdivision viability. Essentially, tion to a fetus not Roe v. Wade's definition of meeting legally the fetus could have been aborted defendant claims because Wade, 182-183], at supra, at pp. under Roe v. 410 U.S. 163 L.Ed.2d page 187, killed, of section protection at the time it was it did attain 751, Smith, (a). supra, Defendant relies on K.A. 59 Cal.App.3d subdivision human its if a has not attained “independent and assert that fetus progeny Wade, at supra, life” Roe at L.Ed.2d page status under 410 U.S. Smith, 182-183], supra, under “viability” it has not achieved K.A. pages 759, he under section prosecuted therefore cannot Cal.App.3d page 187, (a), subdivision for its murder. Wade, the state has no

But 410 U.S. does not hold that supra, Roe v. Indeed, contrary until legitimate protecting viability. interest fetus Smith, supra, People Apodaca, the decisions K.A. Cal.App.3d Smith, supra, R.P. Cal.App.3d Cal.App.3d Henderson, supra, Poe v. Wade are principles inap- (like (a)) to a statute subdivision that criminalizes the plicable of a fetus without the consent. As observed one com- killing mother’s mentator: that the Fourteenth Amendment does not cover the “By holding unborn, the Court was left with one mandated Supreme only constitutionally that the right, of mother’s to be considered with the privacy, along legitimate decision, state interest in an unborn’s life. The Roe protecting potential therefore, forbids the state’s protection of the unborn’s interests when only these interests conflict the with constitutional rights prospective The did parent. Court not rule that the unborn’s interests could not be in recognized (Parness, situations where there was no conflict.” Crimes Against the Unborn: Protecting Respecting Potentiality and the Human Life (1985) 22 Harv. J. on Legis. article,

Other scholarly agrees comment In her The Professor Parness. Juridical Status A Proposal Legal Fetus: Protection the Unborn for that, 77 Mich.L.Rev. Professor states “Where the King protectable interests of fully mature members not do conflict with those of members, less mature there is no justification for the latter’s claims. ignoring The Roe opinion was correct in a state’s interest in recognizing legitimate law, protecting fetus. In previable . . . criminal when that interest does mother, not oppose protected interest of the mature the state should not hesitate to vindicate it.” Finally, Clarke explained by Forsythe Homicide the Unborn Child: The Born Alive Rule and Other Legal Anachronisms Val.U.L.Rev. “

563, 616: ‘While the decision in Roe declares that state not may protect life potential of the human fetus from moment of conception, does only so the very narrow context of the mother’s abortion decision.’ Under Wade, therefore, Roe v. the right to abortion is within the encompassed woman’s right to constitutional The fetus is not privacy. ‘person’ purposes of Fourteenth Amendment and has no constitutional rights would outweigh the exercise of the woman’s Fourteenth Amendment rights. interest, rights interest, fetus’ and the state’s or lack of in protecting fetus, maternal health protecting the life were distinctly balanced against the woman’s right to the context of privacy consensual (Fn. Thus, abortion.” omitted.) when the state’s interest in life protecting the of a developing fetus is not counterbalanced against a mother’s privacy right abortion, interest, to an or other equivalent the state’s interest should prevail. Other states have statutes that adopted criminalize the killing of a fetus. Although “fetus,” no state has criminalized the nonconsensual of a child,” killing of an “unborn several states criminalize the nonconsensual (Arizona, In Illi- it as these states characterizing manslaughter murder. Louisiana, nois, Minnesota, Dakota, Utah), North the murder statutes do stage development.1 have reached a particular not unborn require have rejected equal protection The Illinois and Minnesota courts appellate challenges to their statutes. The were and due feticide process challenges viable and distinguish asserted failure to between based on statutes’ below, on the arguments rejected fetuses. As discussed were nonviable woman’s interest the abortion context ground protection privacy of a to a nonconsensual murder of the unborn child. applicable Illinois, requirement eliminated an legislature express viability The amended commits “person from its murder statute. statute states a if he or she the homicide an unborn child” offense intentional death of harm to the great either intended to cause the or to do bodily child individual “any woman her unborn . . . pregnant [defined (Ill. ch. fertilization until Rev. Stat. species the human from birth].” Ford 9-1.2(b)(l) (1987).) This statute v. challenged f 1189, 1197], involving 221 354 a Ill.Dec. 581 N.E.2d Ill.App.3d statute) of his (under 17-year-old defendant convicted the amended killing 1190.) con (Id. SVi-month-old fetus. at The defendant p. stepdaughter’s and due protection principles tended the statute violated equal process and nonviable fetus. distinguish because it failed between a viable The Illinois Court held statute does not violate equal the Appellate it does interest held protection any protectible because not affect principles defendant, legislative a to a valid relationship and it bears rational by Ford, supra, life.” (People of human v. purpose—protecting “potentiality Wade, 162 supra, p. N.E.2d at Roe v. 410 U.S. at p. quoting at The a defendant p. intentionally L.Ed.2d court observed that who fetus, her terminate murders and a woman who chooses to pregnant Ford, 1199.) are not v. “A (People supra, situated. pregnancy, similarly however, her defend- woman has a interest privacy terminating pregnancy; and ant has no such The statute the mother simply protects interest. (Id. child from at p. unborn the intentional third wrongdoing party.” 1199.) chal-

The Ford court the defendant’s due rejected process/vagueness also when ‘life’ and statutory begins that the “absence of definitions of lenge 1(See (A)(5) (1989) [manslaughter]; Stat. ch. Ariz. Rev. 13-1103 Ill. Rev. Ann. Stat. § 9-1.2, 9-2.1, [feticide]; [murder]; 1985) (Burns Ind. Code Ann. 35-42-1-6 § 9-3.2 §§ [feticide]; 14:2(7), (West supp.) Ann. & Minn. La. Rev. Stat. 14:32.5-14:32.8 §§ § 609.2661-609.2665, 609.266, [murder, 609.268(1) (1987 & man supp.) Stat. Ann. §§ (1991 [murder, slaughter]; supp.) N.D. Cent. Code 12.1-17.1-01 man to 12.1-17.1-04 §§ homicide].) seq. (1990 slaughter]; supp.) [any Utah Code 76-5-201 et & form Ann. § subjective religious, occurs will in the trier of fact its ‘death’ result applying terms, thereby leading views to define those philosophical, political Ford, (People enforcement arbitrary discriminatory statute.” 1200.) statute 581 N.E.2d at The court found the constitutional on that, that it whatever within the ground requires proof entity “only and, called, mother’s womb it had life acts of the defend because ant, entity it no The name is irrelevant to the longer given does. to that under The trier liability only the statute. of fact will be asked to determine fetus, whether the whether or human particular entity, person, an embryo, defendant, and, being, once had life because of the no longer acts of (Id. 1201.) does.” at p.

The Illinois Court relied substantially on decision of the Appellate Minnesota Court and due chal Supreme rejecting equal process protection lenges to a feticide statute a defendant had murdered a woman and who (State 1990) her four-week-old (Minn. Merrill 450 N.W.2d embryo. Legislature Minnesota includes its of first degree definition of “an child with and with unborn intent to effect premeditation the death of the (Minn. 609.2661(1) unborn child or of another.” Stat. § (1988).) rejecting defendant’s challenge constitutional homicide

statute violated because an child lacks equal protection unborn “personhood” Wade, is and not a Roe “person" under 410 U.S. at supra, page 158 [35 180], L.Ed.2d the page deserving under Fourteenth Amend protection ment, observed, the Minnesota Court “The Supreme focus of was on [Roe] the woman protecting governmental from interference or compulsion when she was deciding whether to terminate her . or continue . . pregnancy. the Significantly, Roe v. Wade court also noted state ‘has still another important and interest in the legitimate of protecting potentiality case, human life.’ ... our the fetal homicide statutes seek to the protect life,’ and ‘potentiality human do they impinging so without or directly on a indirectly The pregnant woman’s state’s interest in privacy rights. [][] the protecting child, of human life’ ‘potentiality protection includes of the unborn fetus, too, whether an aor nonviable and it embryo or viable protects, the woman’s interest her unborn child and her to decide it right whether shall be carried in útero. interest of a assailant in criminal terminating woman’s pregnancy outweigh does the right woman’s to continue the context, In this the pregnancy. viability ‘simply fetus immaterial’ to an equal protection to the challenge (State feticide statute. [Citation.]” Merrill, supra, 450 N.W.2d at

Although the Illinois and Minnesota statutes state that specifically viabil- Ford, is not an element ity to be considered for their both supra, application, 1189, Merrill, 581 N.E.2d supra, and 450 N.W.2d illustrate that crim- inalization of the a fetus regard without is not violative or either due considerations. privacy principles, equal protection, process the illustrate killer legislature impose upon

Both cases also free human fetus the same for the murder of a penalty prescribed being as is neither state has the (although legislature permitted application fetus). death for the murder of a penalty state, i.e., Minnesota,

Like Illinois and California is a Legis- “code” lature has the exclusive to define statute what acts constitute a province by (§ 6), to the fair statutory according crime and must “be construed provisions terms, effect and to objects promote of their with a view to import [their] Minnesota, we find justice” (§ 4). Under these like no Illinois and principles, human life” to our Legislature impediment protecting “potentiality from homicide. fetal homicide from both Ford Merrill

Finally, expressly distinguish specifically abortion issue. Our does the same. Abortion is Legislature (b)(3), from section under subdivision which states that exempted aided, abetted, solicited, shall not if “the act was apply consented to the mother of the fetus.” conclude, therefore, are

We when the interests not at mother’s privacy whether, stake, determine at what should Legislature may point, Here, Legislature life inside a protect mother’s womb from homicide. includes murder of a fetus with determined that offense of murder (§ (a).) “fetus” aforethought. Legislative history suggests malice subd. in the its legislative meaning. was left undefined face of divided views about Comment, Homicide?, (See Killing Is the Child Intentional Unborn however, 170,172-175.) fetus is Generally, Pacific L.J. defined as “the unborn after structures offspring period, major postembryonic (Sloane-Dorland have Ann. Dict. Medical-Legal been outlined.” after eight This occurs humans “seven or weeks fertilization” period Thus, we (ibid.), and is a to be made the trier of fact. by agree determination cited criminalize murder Legislature with the above could authority of a product imposition viability require without of postembryonic We need not different to an might apply ment. address whether concerns Smith, 751, to extent K.A. 59 Accordingly, supra, embryo. murder and its a fetus to be viable order for its to be progeny require 187, (a), under section rue the statute and should prosecuted they subdivision be disapproved.2 case, question, 2We do not reach the is not raised in whether the doctrine of and it this where, although constitutionally in the the fetal felony applied murder could circumstance reached, resulting been of the fetus is caused stage development injury has in the death

by a on We do not agency some other than direct assault the mother. also discuss defendant’s (as felony murder) a question premeditated opposed fetus.

811 process challenge III. Due found,

Although the Court of herein consistent with the Appeal an element fetal under foregoing analysis, viability homicide 187, (a), section subdivision it determined that the crime its “redefinition” of defendant, that, amounted if “major the law” would change applied General, violate due process principles. Attorney conceding while not does not address the Court on point, Appeal’s analysis judgment this issue. Defendant here if reasserts that we conclude is not an murder, element of fetal we are bound due process apply not to principles 187, our decision to him. We conclude that our of section interpretation (a), subdivision should apply prospectively only and not to defendant. “ A statute ‘which makes more burdensome the for a punishment ” crime, commission,’ I, 9, 3, after its violates article section clause United States Constitution as an ex facto determination criminal post (Collins 37, liability (1990) v. Youngblood 42 497 U.S. L.Ed.2d [111 30, 38-39, 2715], 167, 110 S.Ct. quoting (1925) v. Ohio U.S. Beazell 216, 217-218, 169-170 L.Ed. 68]), [70 S.Ct. as well as its California I, counterpart, article section 9 of the state (Tapia Superior Constitution v. (1991) 592, Court 53 Cal.3d 434]). 807 P.2d Cal.Rptr. [279 Correspond statute, ingly, unforseeable judicial of a enlargement criminal applied retroactively, operates (Bouie the same manner as an ex facto post law. 347, 900, City (1964) 894, Columbia 378 U.S. L.Ed.2d 84 S.Ct. [12 1697]; People see also (1992) v. Escobar 3 Cal.4th Cal.Rptr.2d 1100]; 837 P.2d People v. Wharton 586 [280 290].) 809 P.2d Thus, holding 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 (Rose is forbidden.” v. Locke 185, 188, 423 U.S. L.Ed.2d 96 S.Ct. Defend ant’s ex post statute, facto contention does not rest on a change but on the fact that until his crime was prosecuted, Courts of had Appeal required a showing of fetal viability before allowing a conviction under Smith, (a), 751; (K.A. subdivision to stand. supra, 59 Cal.App.3d 479; Apodaca, Smith, supra, 76 Cal.App.3d R.P. 1459; Henderson, Cal.App.3d supra, 1129.) 225 Cal.App.3d contention, In of his support defendant relies on our recent in decision People v. King, supra, (hereafter 5 Cal.4th 59 in King), which we held that our 330, decision re overruling In Culbreth 333 [130

812 719, 23], King 551 not be to the retroactively P.2d could applied Cal.Rptr. because do so “make the for defendant to would punishments [defendant’s] 5 supra, after Cal.4th (King, crimes more burdensome he committed them.” 80.) at p. 12022.5, Culbreth,

In supra, re Cal.3d we section applied In (a), had killed his enhancements a defendant who shot and subdivision wife, mother-in-law, a rifle. Section law and brother-in-law with common 12022.5, (a), in relevant that who provides part “any person subdivision in uses a firearm commission of attempted the commission or personally shall, addition felony upon felony attempted felony, conviction that or or felony attempted to the punishment prescribed consecutive convicted, as a sentence which he she has felony punished” or been Culbreth, 332.) (See, supra, question enhancement. In re at p. whether the sentence could be enhanced for both of murders whether held, three murders. We only one enhancement could be for all imposed “The as deter- of section 12022.5 has been described legislative purpose rence, i.e., if . . But to deter the use of firearms on occasions. . subsequent com- all are incident to one charged objective effectively offenses transaction, invoked only section bemay an indivisible then 12022.5 prise Culbreth, (In re with the number of victims.” once and accordance supra, 333-334.) at pp. rule after con- we overruled In re King, “single-occasion” Culbreth's But also noted that it had no we

cluding statutory language. support this pronouncement by had been since its applied consistently Culbreth court, for defend- would make the application punishment so retroactive (King, supra, ant’s he them. crimes more burdensome after committed 80; Cal.Rptr. Cal.4th at In re Baert [252 v. our Anderson [refusing apply retroactively holding 418] 1306], eliminated (1987) 43 Cal.3d 742 P.2d which circumstance].) The intent kill as an element of the felony-murder special same here. principles apply above, have erroneously implied

As discussed several Courts of Appeal not, (a). we are Although into section subdivision viability requirement reconsidering precedent, our own King, supra, 5 Cal.4th faced into has been read consistently the fact that a viability requirement (a), hold- proposed defendant’s assertion our supports subdivision (Bouie statute. of criminal ing judicial enlargement creates unforseeable Columbia, 899-900]; supra, pp. U.S. at L.Ed.2d City Locke, whether Rose 23 U.S. we now consider Accordingly, to a by instructing jury pursuant the trial court erred prejudicially modified instruction on viability. error

IV. Instructional No. CALJIC pursuant be instructed jury Defendant requested unlawfully 8.10, who “Every person murder as follows: which defines fetal in the crime of of aforethought guilty with malice kills a fetus violation of Section 187 of the Penal Code. ... ^[1] In order prove such 1. A viable human crime, must be proved: H] elements following each of unlawful, The was done killing 3. killed. 2. The fetus was who has fetus is one A viable human . . . aforethought. with malice [f] normally capable to be as organs such form and development attained “The term states: to the instruction outside the uterus.” comment living Code, People child. v. viable unborn in means a ‘fetus’ as used Penal § Smith[, supra,] 59 758-759.” Cal.App.3d [K.A.] above, modified the following trial court instead gave As noted Penal Code section meaning of CALJIC No. 8.10: “Within version One, it has when (a), a fetus is viable charged subdivision Count existence; is, possible when it is achieved the capability independent birth, medical aid.” with artificial although for it to survive the trauma of (Italics added.) modification that the trial court’s

The Court of below assumed Appeal Apodaca, People from the decision CALJIC No. 8.10 was taken part viability to define supra, attempted where that court fetus. he did not murder a viable the defendant’s contention that resolving discussed, fetus is viable court noted that Apodaca As previously “[a] existence; as we have when it has achieved the for independent capability indicated, for it to survive a fetus is deemed viable when it is possible birth, (Id. 489.) medical aid.” at trauma of with artificial although than a fetus a context other Although Apodoca discussed error, that its discussion instructional the Court of below concluded Appeal trial court’s instructional nonetheless served as a model for present modification. Hamilton, reviewed an instruction we given the modified version CALJIC No. 8.10 identical to

substantially here, but, above, given the instruction as as noted declined to whether decide im- it “improperly “contained a latent but because prejudicial ambiguity” alive, if even it could being that a fetus is viable if it is bom plied capable the mother’s womb.” have survived for a sustained outside period not “need that we (Hamilton, supra, 48 Cal.3d at We determined claim, he cannot ambiguity posits address the merits of defendant’s since the evidence estab- and conclusive have been Uncontradicted prejudicial.... (Id. at high.” fetus’s sustained survival was lished that likelihood of this Thus, fetus would have been under the considered viable any instruction. 8.10, observed, the CALJIC No.

As the Court of below of Appeal wording uterus,” “normally living as of of the while defining viability capable outside a than clarity, not a model of better even chance—a suggests probability— contrast, if that at that in time. By a fetus will survive born particular point survival, the a of essen- given suggests “possibility” instruction below a outside the incapable amounts to that a fetus of survival tially finding discernible considered “viable” any womb for time would nonetheless be (a). within Because the instruction meaning the section subdivision trial court lowered the threshold as given by substantially viability the Wade, (as supra, defined v. understood Roe commonly accepted Smith, 182-183], supra, 162-164 at K.A. pp. pp. U.S. at L.Ed.2d 752-753, trial at and its we conclude that the court pp. Cal.App.3d progeny), erred in the a modified version of CALJIC No. instructing jury pursuant 8.10. result then is it is more question reasonably probable whether the instructional

favorable to defendant have been reached absent would 243].) The Watson record (People error. 46 Cal.2d P.2d the the testimony probability shows the of medical weight against the medical fetus viable at it was tilled. Defendant’s being expert point trauma that it was the fetus to have survived the of an opined “possible” for birth, that its were or 3 Unlike early percent. but chances for survival about Hamilton, supra, rejected at in which we pages fetus defendant’s claim of instructional error after had determining (or chance of probable living “better than 50 chance of survival” percent womb), in this who testified at outside case none of the medical experts defendant’s trial believed that the fetus had a chance survival. “probable” viability erroneously because evidence on issue of Accordingly, survival, and the was then supported concept jury the “possibility” survival,” was misinformed viability instructed that means “possible jury “ find the such form and it could fetus was viable before ‘attained outside the normally living as to be development organs capable ” Smith, 758; 8.10.) No. (K.A. CALJIC uterus.’ 8.10, Had it is it would been CALJIC No. jury given reasonably probable conclude, therefore, have found the fetus not We that defendant was viable. error and the conviction of fetal must prejudiced by instructional be reversed.

Conclusion fetal homicide under We conclude is not element of a fetus with malice (a). section subdivision The third party killing (a), as the long under subdivision is murder aforethought stage of embryonic has progressed beyond the fetus can show that state weeks. eight seven to that defendant and should not holding apply

We also conclude that our the jury pursuant by instructing court committed error prejudicial the trial the judgment We therefore affirm CALJIC No. 8.10. a modified version of of of the Court Appeal.3

Arabian, J., concurred. murder as the “unlaw KENNARD, J., defines California law Concurring. (Pen. aforethought.” with malice being, fetus, ful of a human or a killing added; Code, 187, are to references (a), statutory italics all unlabeled subd. § fetus, code.) The here whether who kills nonviable this issue a person is, womb, may that a fetus of sustained life outside incapable concludes murder. Ihe lead opinion convicted of murder, fetal and did make an element of Legislature viability not criminal making the federal a state from Constitution does prohibit ante, 809-810.) I (Lead pp. the unlawful of a nonviable fetus. killing opn., however, by I made agree. points write to address some separately, dissent, United States and to the lead discussion of the on expand opinion’s L.Ed.2d Court’s in Roe v. Wade 410 U.S. Supreme decision 705], 93 S.Ct. dissent, crime to restrict the According Legislature to the our intended I of fetal murder in which the viable. am persuaded, to cases fetus was however, evidence strongest that this was not the intent. Legislature’s intent legislative plain simple is the used the statute. language terms, (a), “Murder is the unlawful subdivision states: fetus, There reference single of. . .a with malice is not aforethought.” legislative history the statute to the term the scant “viability.” Nothing a viability me that the intended Legislature enactment persuades requirement. dissent, failure to

Unlike the I attach no to the significance Legislature’s rewrite in the wake certain decisions Courts by the fetal statute I into the statute. do not viability that have read a Appeal requirement case, that a multiple opinions appropriate 3Because of the in this we believe it to observe (1) viability a fetus is not an majority of the court concurs in our determinations that defining (a), (2) element of fetal murder under section subdivision the instruction post error under ex viability “possibility” prejudicial in terms of mere of survival amounted to reversing the conviction of murder principles, Appeal judgment facto the Court of must be affirmed. these have agreed must Legislature view that the

share the dissent’s as an decisions, viability eliminate section 187 to or it would have amended signify “legislative inaction would Legislative fetal murder. element of action, if, have undone could Legislature taking only acquiescence” could not here the Legislature But Appeal. rule the Courts adopted by read into of these decisions that the first requirement undo (People v. Smith law.” “as a matter of constitutional fetal murder statute Faced with (1976) 59 than its more nothing inaction proves authority, Legislature’s appellate law, that, of section enforcement under California case recognition fetus would be killed a nonviable (a), someone who had against subdivision unconstitutional. Smith, a read supra, in

When the court appellate statute, did so the fetal murder into constitutional requirement Wade, the It U.S. 113. supra, appears in Roe v. mistaken reliance on interfere with a to authority the issue of state Court of confused Appeal to authority of state the distinct issue choice with quite woman’s procreative the woman against pregnant third whose violent conduct a punish party viability” in of “fetal concept Roe the Although her of that choice. deprives issues, to California’s it has no application the first of the two was critical to statute, I murder as shall explain. fetal Wade, affirmed the principle the court supra, high 410 U.S. Roe v. in the federal Constitution embodied guarantee personal privacy of procreation— as intimate decisions those personal rights—such

protected in of ordered the concept ‘fundamental’ or ‘implicit that “can be deemed ” 176-177].) That federal at (Id. pp. 152-153 L.Ed.2d at liberty.’ pp. [35 stated, to enough the was “broad court guarantee personal privacy, her to terminate pregnancy.” decision whether or not woman’s encompass right a woman’s (Id. L.Ed.2d at Measured against at p. in the interest protecting to terminate her state pregnancy, any choose only be sufficiently compelling life of an unborn fetus would potential is, live able to when the fetus is “potentially of fetal point viability—that womb, (Id. artificial aid.” at pp. albeit with outside mother’s state interfere 182-193].) at that Only stage may L.Ed.2d at pp. an abortion. to choose to have right with the woman’s fundamental pregnant constitu- may at which a state point “fetal delineates viability” Because abortion, to the court’s high was central concept tionally prohibit in decision Roe. in when, here, results assault on a woman pregnant

But as a violent carries, the act the state’s to criminalize killing power of the fetus she Because, “fetal unlike the situation viability.”1 does not on depend Wade, constitutionally Roe v. 410 U.S. there is no competing stake, criminalize the conduct can interest at the state’s decision to protected if even the does have a interest justified protecting state compelling Moreover, criminal human life. when a fetus dies as the result of a potential woman, assault on a extends pregnant beyond protec- state’s interest tion violent human life. The state has an interest potential punishing conduct that woman of her choice. deprives pregnant procreative above, that,

For the reasons I given join concluding lead opinion (a), constitute fetal murder under need not subdivision fetus be viable.

The dissent raises an concern when it out that the lead important points opinion’s of the statute could result the death for a interpretation penalty defendant who lacks intent to kill but whose conduct while any committing woman, causes a in her felony inadvertently miscarry. early pregnancy, (Dis. post, opn., This anomalous result is attributable to our largely rule, felony-murder rule. Under that even an accidental committed during of certain murder. perpetration specified degree felonies is first illustrate, however, (§ 189.) The dissent’s that a hypothetical scenario does felonies, who committed the person one of and was unaware that a specified could, woman that present during the felony pregnant by causing woman to miscarry, be to the death In some such cases a subject penalty. death, penalty of or even life without the imprisonment possibility parole, bemay wholly to the criminal disproportionate particular culpa- defendant’s and thus bility, may violate constitutional cruel and against proscriptions Const., Amend.; (U.S. (1987) unusual punishment. 8th Tison v. Arizona 137, 127, 144, 1676]; U.S. Georgia L.Ed.2d 107 S.Ct. Coker [95 982, 989, Const, 2861]; 433 U.S. L.Ed.2d S.Ct Cal. I, 17; art. v. Dillon §

668 P.2d The sentence of life in without the court possibility parole imposed by this case is not wholly to the criminal disproportionate culpabil- defendant’s The ity. defendant in young shot a woman the chest at point range blank her, while to rob in trying conduct which is to result highly likely fatality. It was fortuitous in only that defendant’s conduct did not result the death of facts, the woman with the she along fetus carried. On these the sentence of life without parole is not cruel and unusual punishment. pregnancy 1When a by physician surgeon necessity is terminated or at the for medical woman,

request or with the pregnant prohibition consent of the the criminal of section (a), (§ (b)(2) (b)(3).) apply. subdivision does not subd. & its warrant tragic consequences Even defendant’s criminal act and though murder and the degree special substantial his conviction for first punishment, lead the set forth the finding must be reversed for reasons circumstances opinion. reasons, I concur in lead opinion.

For all of these J.,* J.), (S. Stone concurred.

BAXTER, J., trial court this case Had the Concurring Dissenting. need viable Penal Code section instruction that a fetus not be under given an (a) 187(a)), (hereafter section or had the law California subdivision that, 187(a), fetus ¡settled been for meant a viable purposes survival fetus with a or a “reasonable likelihood” of outside “probability” womb, I lead to re opinion then not hesitate joining would case, stands, however, neither is verse defendant’s conviction. As Therefore, I that of a fetus is not holding viability while concur 187(a), I from decision to reverse. under section must dissent required out, jury As the lead trial court below instructed opinion points find 187(a), it must defendant of fetal murder under section guilty find fetal Inasmuch decision holds that today that the fetus was viable. as our 187(a), given inured not a of section instruction viability requirement to defendant’s benefit. “A when it has trial court further instructed: fetus viable achieved is, existence; for possible it is when independent capability birth, aid.”1

it to the trauma of with artificial medical although survive (Italics added.) under fetal is not even a Although requirement in 187(a), finds that the court erred opinion prejudicially lead survival, defendant’s viability “possible” terms of overturns defining conviction. In that definitional instruction finding makes no sense. this approach

This error, was is to decide an issue that was lead opinion purporting (See his at the defendant acted and at the time of trial. unsettled both time effect, 819-821.) a wonderland to post, the lead wanders into opinion pp. Justice, District, Six, by Acting assigned *Presiding Appeal, Court of Second Division Chairperson of the Judicial Council. addition, of birth does not jury “[s]urviving 1In the trial court instructed the that the trauma survival, through day period.” mean at least the 28 neonatal momentary requires but survival Therefore, not, tell opinion suggests, jury did the instructions as a whole as the lead a fetus a could to “a fetus of survival outside possibility incapable with of survival refer ante, (Lead any opn., womb discernible time.”

819 what the be had it today’s holding rejecting decide law not been for might limitation. viability world, on Rather than venture a fictitious I we should focus into believe an rights giving whether defendant’s due were violated process viability instruction defined terms of survival. Since possible unsettled status of case law determination whether previous precludes any error, the trial look court’s instructions constituted we should instead whether the trial unfore court’s reliance on the definition was an challenged (See Colum judicial 187(a). City seeable of section Bouie v. enlargement 894, 899-900, I (1964) bia 378 U.S. 353 L.Ed.2d 84 S.Ct. [12 conclude was not

There are at least of viability three reasons the trial court’s definition why did not amount to an unforeseeable of the fetal murder judicial enlargement First, statute. at the time some Courts of although defendant acted Appeal inferred 187(a), had a limitation viability directly to section none had addressed whether a a viable fetus means a fetus with a probability womb, reasonable likelihood of survival outside the to one opposed (i.e., (K.A.) only possibility People (1976) of survival v. Smith 59 Smith]; 751 Cal.App.3d Cal.Rptr. People Apo K.A. v. [129 498] [hereafter (1978) daca 76 479 Apodaca]; Cal.App.3d Cal.Rptr. [142 830] [hereafter (R.P.) v. People (1987) Smith 1495 Cal.App.3d Cal.Rptr. 142] [234 Smith]; People R.P. [hereafter Henderson Cal.App.3d Second, Cal.Rptr. Henderson]). two ex courts had 837] [hereafter the view pressed that a viable fetus that has means one a possibility 489; Henderson, (see survival Apodaca, supra, Cal.App.3d Third, 1157-1158). at pp. indicated in this court 1989—two before the years conduct this case was undertaken—that we would consider an propriety of instruction that a fetus deemed implying when it viable it to possible for survive if and we were when faced with involving case less (see fetus with than a percent likelihood of survival Hamilton 1171-1172 Thus, P.2d Hamilton]). 730] [hereafter definition of open question California. above, below,

As indicated two Courts of like the trial court Appeal, that a posited viable fetus means a fetus (see that has a of survival possibility Henderson, Apodaca, supra, Dist.];2 76 at Cal.App.3d p. App. 489 [Fifth Dist., supra, Three], 225 Cal.App.3d citing 1157-1158 Div. at pp. App. [First precise 2Tbe statement Apodaca in was: “A fetus is when it has the viable achieved existence; for capability independent ... a fetus is viable when it is it possible deemed for birth, 489, the although (76 survive trauma of Cal.App.3d with aid.” at p. artificial medical 820 fetus has or a reasonable

Apodaca), as contrasted that a probability likelihood of survival. 479, in Apodaca, supra, spoke

It is that the court in 76 Cal.App.3d likely 113 (1973) of Roe v. Wade U.S. [35 terms survival because possible 147, a fetus as the time when L.Ed.2d 93 S.Ct. referred to viability 705] womb, aid, has with and live the albeit artificial able” to outside “potentially 160, L.Ed.2d at (See U.S. pp. of life.” at “capability meaningful However, 181-182].) Supreme States Apodaca, supra, after the United pp. view, Court, viability, that previous to reiterate its stated purporting life, judgment was reached when the capability meaningful of of “there is a likelihood woman’s reasonable pregnant attending physician, womb, the with or artificial the fetus’ sustained survival outside without [sic] 379, 596, (Colautti v. Franklin 439 U.S. L.Ed.2d support.” 675], Colautti].) Hend Subsequently, 99 S.Ct. italics added [hereafter erson, 187(a) supra, 225 held that was not uncon Cal.App.3d section principles. and therefore did not violate due stitutionally vague process was in the context that the of well established recognizing concept viability Apodaca definition viability. of section Henderson cited to the of 1157-1158.) (Henderson, Although Henderson supra, at Cal.App.3d pp. referred to language did not address reasonable likelihood specifically Colautti, did conclude had no to the construction it that Colautti application 187(a) (225 of at Cal.App.3d p. that, whole, even a fetus must though

Taken as a these decisions indicate womb have a of outside the for reasonable likelihood sustained survival issues, have a of simply possibility of various abortion a fetus must purposes 3 Apodaca survival fetal murder statute. purposes California’s that with an implied Henderson thus defendant on sufficient notice even put however, added.) court did Strictly speaking, appears italics to be dicta—the this statement question failing not reach erred to define the word “fetus” whether trial court had during had trial that viability testimony in terms of because uncontroverted indicated medical Furthermore, gave its the fetus was viable at the time was murdered. while court it viability holding viability definition of determination of fetal context case, dependent peculiar possibility/ each did address the upon circumstances it not probability distinction. Apodaca 3It is Court of are Appeal unclear whether the other decisions inconsistent Smith, supra, and Henderson. K.A. stipulated early case in which was Cal.App.3d (id., 754), of a subject simply fetus was at held that the destruction nonviable (59 187(a) at Cal.App.3d pp. nonviable fetus could under section not constitute murder However, 756-757). concept viability rejecting Attorney argument General’s serviceable, the court in K.A. Smith stated that the definition vague was too to be “ established, organs meaning ‘having development well as to such form attained ” (Id., citing New normally living Webster’s capable outside uterus.’ court, however, (3d 1966) to address the p. 2548.) Dict. ed. had not been asked Internat. Smith, did distinction. R.P. also possibility/probability

821 limitation, the view that section some California courts were of viability 187(a) having the unlawful a only possibility fetuses proscribed therefore that his conduct reasonably anticipate survival. Defendant could 48, (See (1975) 423 U.S. 50 L.Ed.2d would be Rose v. Locke proscribed. [46 188, 185, 96 S.Ct. 1142, Hamilton,

Our 48 statements Cal.3d another provide yet Hamilton, reason In finding defendant on the due issue. a against process defendant contended gave jury that trial court instruction that improp alive, if erly that a fetus is if born even implied capable being viable could not have survived for a period sustained outside mother’s womb. fact, In it appears erroneous instruction in Hamilton was allegedly that based on the part Apodaca, supra, 76 language “possibility” 489, at page and that the defendant had the instruc specifically argued that Colautti, supra, tion was at contrary 439 U.S. L.Ed.2d at page p. [58 (Hamilton, 1171.) supra, 48 Cal.3d at we Although 605]. expressly declined to address the defendant’s claim on the merits because there was evidence that the under subject fetus had attained viability uncontroverted test, any we “The noted: extending 1970 amendment murder to fetuses 187, 1311, (§ (a); subd. 2440) Stats. ch. contained no § amended, As proviso. (a) subdivision defines murder as simply fetus, ‘the unlawful killing of a or human with malice being, aforethought.’ The Courts of have Appeal inferred a viability limitation light cases, subsequent abortion which first recognized woman’s constitutional right to her terminate (See, before the pregnancy fetus becomes viable. e.g., Smith, supra, 1171-1172, 756-757.)” (Id., fn. Cal.App.3d at pp. 18.) at pp. Hamilton thus highlighted the fact we that did not accept approve limitation, implied viability and signaled our intent both to address this issue and the issue if possibility/probability and when with the presented type of facts involved here.

Affirmance of defendant’s conviction is our consistent with decision fully in People King (1993) 5 Cal.4th 59 Cal.Rptr.2d P.2d 27].. which, out, as majority overruled re points In Cal Culbreth 3d Cal. Rptr. (hereafter P.2d Culbreth). 23] King, supra, Cal.4th the Attorney argued General that our overruling of Culbreth should to the apply defendant because the words of the plain statute, subject together with explicit criticisms of Culbreth various Courts of fair Appeal, gave warning we reconsider our stated might (5 position. 79-81.) Cal.4th at rejected We pp. “The argument, observing: mere possibility this court might reconsider its own is not the precedent equivalent of (Id., actually overruling it.” at p. specifically issue, discuss possibility/probability equate but did seem to the term “viabil- “85

ity” percent (Id., chance independent p. 1516.) survive of the womb.”

822 The challenged jury clearly distinguishable. before us is

The situation grounded survival is terms of defining viability “possible” instruction acted, no defendant Prior to the time of two decisions. language appellate section held that for purposes in California had ever court appellate likelihood of survival. or reasonable 187(a), means a probability 1171-1172, Hamilton, warning gave ample Cal.3d at pages 48 Finally, in a issue the possibility/probability that we would consider to defendant facts. case presenting appropriate circumstances, the jury claim that credibly defendant cannot

Under these enlarge- judicial an unforeseeable this case given represented instructions were rights defendant’s due 187(a). Accordingly, process ment violated their use. by

I the conviction. would affirm J., concurred.

George, “fetus” I intended the term MOSK, J. Legislature dissent. believe the I I rest mean a viable fetus. to Penal Code section 187 to its 1970 amendment grounds. this belief on a number of

I “ First, is to ascertain ‘The construction statutory fundamental purpose ” of the law.’ effectuate the purpose the intent of the lawmakers so as to 174, 206, 841 P.2d (1992) 4 (People Cal.Rptr.2d v. Thomas Cal.4th 210 [14 legislative evidence that intent are “Both the 159].) the relevant Among its enactment the statute and the wider historical circumstances of history (1987) 43 Housing Fair & Com. (Dyna-Med, Employment . . . .” Inc. v. 67, P.2d Cal.3d Cal.Rptr. to Penal Code section

Here the of the 1970 amendment legislative history unusual, even code) are (all unlabeled references to this statutory in Keeler v. we filed our decision dramatic. On June Friday, (1970) 2 470 P.2d Superior Court Cal.3d 619 [87 Keeler), did not intend (hereafter holding Legislature A.L.R.3d 420] of section meaning that a viable fetus be deemed a “human within being” decision was On the next June 15—the very working day—Monday, 187. (See leader of the Assembly. floor publicly majority denounced Comment, Child Homicide? Killing Is the Intentional Unborn Comment, Killing an Unborn Pacific L.J. 172 & fn. [hereafter and the Child].) halfway session was more than over Although legislative leader bills had since introducing long majority deadline new passed, Legislature nevertheless took immediate action to overrule permit Keeler, on a legislator a fellow of a bill relinquished sponsorship pending 24 the different Bill on June wholly subject—Assembly No. 816—and leader in majority original entirety “amended” that bill its text its by deleting and In the it with his new version replacing quick of 187. succession 17), bill was then amended twice more in 10 & Assembly (July the passed 27), 7), and sent to the Senate in and amended the Senate (July (Aug. passed and 20), returned to the where the Senate were Assembly (Aug. amendments short, 21). concurred in next (Aug. passed the In the bill was both day houses, after hearings amendments committee multiple and appropriate house, in each the And effort been space barely eight of weeks. the had successful: the its the “was despite wording, evolution of bill’s author intent, is, convinced that it would his make accomplish original that to (Comment, Robert Keeler’s actions a of susceptible to murder.” charge Child, an Killing supra, omitted.) Unborn 2 Pacific L.J. at fn. intent, therefore, To determine Legislature’s we to need understand precisely (2) what were “Robert Keeler’s and this actions” court’s to them. response It is letter black law that the of a case is holding “ determined (a) account ‘by taking by treated as facts judge ” material, (b) and his (Achen decision based on them.’ v. Pepsi-Cola Bottling Co. P.2d Keeler, The material facts of supra, Cal.3d were undis essentially puted. When Robert and Teresa Keeler were granted decree interlocutory 27, 1968, of divorce on September Teresa already was one pregnant by Vogt. Ernest She began a living Vogt different and city concealed fact from Robert. Under the decree of divorce their Robert had custody daughters, two had right but Teresa to take the on alternate girls later, 23, 1969, weekends. Five months on February Robert encountered driving Teresa on rural after road their delivering girls home. He her, “I said to you’re hear If are had pregnant. you you better from stay away (Id. girls 623.) from here.” at p. When Teresa out of her car got looked her Robert abdomen and became “extremely “You upset.” Saying, sure I’m going are. it out stomp you,” he her in the struck face his knee into her abdomen. pushed When doctors subsequently performed on Caesarean section Teresa the fetus was delivered The stillborn. patholo gist that opinion was the fetus’s fatal injury—a skull fracture—could aby have been caused blow to Teresa’s abdomen. time

At the the fetus delivery weighed five pounds and eighteen length. light inches in these facts Teresa’s obstetrician estimated the the age old. An likewise estimated attending pediatrician fetus was 35 weeks testimony as between and 36 weeks. The thus expert of the fetus 341/2 fetus had certainty’ developed ‘with reasonable medical “concluded i.e., in the event of birth on date viability, to the stage premature have chance of survival.” it would had 75 percent percent question (Keeler, Cal.3d at p. court, Keeler, I which for the demon- opinion authored majority viable materiality repeatedly of the fact that fetus was

strates fact At the outset analyses into its and conclusions. legal incorporating but that the issue the court was “whether an unborn viable we stated before 187],” of and concluded that being’ meaning is a ‘human within the fetus [§ meaning” did not intend such a the common law Legislature “the because (2 a a murder. Cal.3d at had live birth to of always required support charge added.) p. italics importance

Thereafter the focused our attention on the of People sharply of The contended that the law live viability. requirement common an test of what human because longer being birth was no is a appropriate a fetus weeks or gestation modern medicine born after 28 more of “has survival, i.e., but excellent chance of is ‘viable’ that an “unborn viable” life; who fully capable unlawfully fetus is now of and that one independent (2 a life” 187. Cal.3d at terminates “such should be under section prosecuted viable, 631.) In we did that such were now but p. response, deny not fetuses for held on two that Keeler could not be murder grounds Robert prosecuted “an by alleged though reason of his act of unborn—even viable— killing (Ibid.) fetus.”

The was to rewrite ground first our reluctance the murder statute extend (2 632) it to this new class victims. We Cal.3d at that recognized p. of an “unborn but viable” fetus be deemed an offense as killing may grave murder, thus liability common law but reasoned that to extend declare, a for the “For a solely Legislature: simply by was matter court to fiat, time judicial has now come to under section one prosecute kills an unborn but viable fetus would indeed to rewrite statute who added.) (Id. at guise construing p. under the it.” italics a to the The second was our of due bar ground perception charge process Keeler enlargement because Robert had no notice of such judicial We him crime of murder. found California case notice that the giving no (2 of an “unborn but viable” fetus was covered section 187. Cal.3d killing 636.) at We p. distinguished People Chavez fetus, 92], “a however ground P.2d on that it did not hold that viable,” under being was a human process being bom mies (2 637.) we civil law distinguished section 187. Cal.3d at And also it unborn child is subse- protecting provided interests of an property alive, Robert Keeler born such mies did not quently why give explaining now be murder. notice of an “unborn but viable” fetus would (Id. p.at (2 Burke in Keeler Cal.3d dissenting Chief Justice opinion Acting 639) tied to the fact analysis likewise its and conclusions closely

viability. began question Thus the evidence that the fetus by stressing reached “had the 35th week of a 96 chance development, had percent survival, (Id. at and was alive death. ‘definitely’ and viable” at time of 639-640.) The pp. dissent then of arguments support marshaled number of its conclusion that such a viable fetus was human under being 187.

First, the dissent there argued is common law precedent support [i.e., view that “a viable fetus such as a Girl Baby Vogt Teresa Keeler’s is a “human under baby]” (2 homicide being” California statutes. Cal.3d 640.) at noted p. dissent law severely common punished i.e., abortion after the time when fetus first move “quickening,” the is felt to womb, in the and reasoned that “we cannot assume the Legislature that defendant, a such person as of charged intended with malicious slaying child, fully viable to suffer the mild only common penalties imposed upon who, abortionists ordinarily, procure only a nonviable miscarriage 641, (Id. fetus or embryo.” at p. added.) italics The dissent then disclaimed however, any suggestion, that “human in being” section should defined in terms of the outdated “The concept quickening: analogous concept clearly more satisfactory, for has a well defined and medically determinable meaning denoting ability of the fetus to live or survive apart (2 from its omitted.) mother.” at Cal.3d fn. p.

Next dissent argued that its view would not create a new judicially offense because the intended Legislature that the term “human being” section 187 be construed an evolving as to be defined concept courts according to contemporary Noting conditions. that under those conditions the Keeler survival, fetus would have had a 98.8 chance percent dissent urged that the term “human being” “the should include fully (2 viable 643.) fetus.” at p. Cal.3d

The dissent rejected also the majority’s due rhe- ground, process asking torically, 18-inch, “Can defendant claim really that a surprise 5-pound, 34-week-old, living, viable child (2 is considered be a to human being?” Chavez, added.) In view the at italics decision Cal.3d p. that “defendant had sufficient the dissent found (2 fetus.” Cal.3d the words ‘human could include a viable being’ notice that added.) at italics p. sum, concluded, fully viable good why “There is no reason the dissent (2 Cal.3d being’ ‘human under

fetus should not be considered a [§ 187].” added.) italics Keeler it is obvious today, It was thus obvious to reader of as any Keeler’s held that the did not Robert act that the case intend that Legislature as murder viable” killing “unborn but fetus be maliciously prosecuted to Legislature That act holding under section 187. was the motivated and it unusual was speed publication opinions, with such Keeler upon to, did, Bill No. 816 intended holding Assembly also the Keeler hold- overrule: was amended 1970 to nullify “[Section] (2d 1988) (1 Against & Criminal Law Crimes Epstein, Witkin Cal. ed. ing.” Person, 450, amendment It follows that the 1970 by enacting § murder, Legislature to section 187 the extended crime of Keeler do, include fetus. To read killing refused to the malicious of a viable further of even that amendment as include the extending fetus, now, as the does the facts ignore nonviable lead opinion Keeler so legislative they plainly and the direct holding response triggered.

II rule supports Another construction this conclusion. statutory People case to amendment 187 was first construe the 1970 to section Andrew) (Karl (1976) v. Cal.App.3d Cal.Rptr. Smith 59 751 [129 498] There, Keeler, 619, (hereafter Smith). K.A. as in 2 Cal.3d the defend- terminating assaulted a with the intent her pregnant specific ant woman and caused her the woman miscarry; difference was that pregnancy, 12 was to 15 weeks at the time. “It was only pregnant stipulated (59 754.) The product of was nonviable.” at trial conception Cal.App.3d p. under court ruled that fetus could be an of murder only viable object amendment, People’s dismissed a murder On the charge. therefore the Court of affirmed the denied review. The Appeal ruling, and we appeal issue; Court of devoted its entire to the its rationale Appeal opinion although herein,1 held that differed from the Court my reasoning Appeal squarely “we in refer to a viable unborn construe word ‘fetus’ section 187 to (Id. 759.) into the incorporated approved child.” at This construction was murder, “a defining instruction fetal which declares that jury viability. viable human is an of the crime and defines fetus” element such (CALJIC (5th 1988).) 8.10 No. ed.

All likewise cases fetal murder in this state have subsequent involving held v. (People or assumed that is an element of the crime. 701, (1989) P.2d Hamilton 1171-1173 Cal.Rptr. [259 1129,1157 730]; People (1990) v. Henderson 225 Cal.App.3d Cal.Rptr. [275 fetus.”]; ‘fetus’ described statute means ‘viable’ only 837] [“The People (Robert Porter) v. Smith 1512-1516 Cal.App.3d 142]; People Apodaca (1978) v. Cal.Rptr. 487-490 Cal.App.3d [234 Cal.Rptr. cited, The lead opinion reviews cases but overlooks just Bunyard 45 Cal.3d 1189 P.2d There 795]. defendant was convicted of double murder when he hired kill another to his wife, Keeler, she knowing was As pregnant. supra, Cal.3d the fetus time—indeed, term; was undoubtedly at the viable full was there was thus no issue as to whether viability an element of fetal murder under section 187. theYet court plainly implied that it was an element of that crime: also Keeler, inas Bunyard2 our opinion repeatedly the fact of the incorporated fetus’s viability into its legal analyses and conclusions. For example, rejecting a contention that the multiple-murder statute special-circumstance 190.2, (§ (a)(3)) is ambiguous subd. because it does refer to the expressly murder of “a fetus” as does section said that we when the two statutes are read together it is clear that the circumstance special applies act, even killing, aby single “of a (45 and her pregnant woman viable fetus.” 1237-1238, added, omitted; Cal.3d at pp. 1239.) italics fn. see also at p. id. We next rejected a contention that to make the defendant death-eligible because of the murder of a fetus would violate state cruel or unusual Const., I, punishment (Cal. clause. art. We that “The fact explained § (59 1The court’s principal 757) rationale “Implicit was that [Roe Wade 147, (1973) (35 410 U.S. 113 705)] L.Ed.2d 93 S.Ct. is conclusion that as a matter of [i.e., constitutional law the of a by destruction nonviable taking fetus is not a of abortion] human It life. follows that such destruction cannot constitute murder or other form of homicide, mother, by (as here), whether committed a a person.” father or a agree third I with ante, 803-810, opinion’s (lead the lead critique of that pp. rationale opn., critique but the to irrelevant the point I make here. 2The opinion was by Arguelles joined authored by justices, including Justice and five Chief Justice and Justices Eagleson; Panelli and Justice Kaufman fully concurred in the portions of the opinion quoted hereafter. 828 less defendant the victim is an unborn child does render

that murdered severe, Legislature’s or the crime less of the determination light culpable, statute protection receive the same under the murder that viable fetuses 1240, Eighth an (45 added.) We then rejected Cal.3d at italics persons.” p. alia, show failed to Amendment claim the inter that the defendant ground, on to respect or decisions “with sentencing arbitrariness charging practices and of a woman pregnant of the death the murder imposition penalty added.) we found {Ibid., her viable fetus.” italics Finally, unpersuasive three in which defendant’s that California is states argument only one to raise a murder of a woman pregnant feticide can accompanying noncapital to the distinc- status. We that fails consider capital explained argument that, 187, the do not jurisdictions unlike section laws of most other tion homicide, murder, all.” a viable killing “make the unlawful fetus 1241, (45 added.) Cal.3d at italics asserts the case at opinion correctly “every prior

The lead that until bar had viability decision that had addressed the issue determined that viability 187, fetus to a conviction under section of the prerequisite ante, (a)” 802). this fact (lead subdivision The lead invokes opn., opinion its that to new and construction to conclusion its support apply contrary would due ex facto process post section 187 this defendant violate his and But the and compelling fact also leads to another rights. logically equally 751, Smith, conclusion. Since the decision 59 Cal.App.3d K.A. 187, the an element murder under holding of fetal section holding has times but has no to overrule that step met 18 taken Legislature what would by be a amendment to the statute. simple statutory by well knows how delete elements added Legislature construction, on example, murder. For judicial particularly topic malice, 187 murder as a 188 pro section defines section People vides of both In statutory definitions malice. express implied 310, 815, (here 322 411 Conley Cal .2d P.2d Cal.Rptr. [49 911] Conley), after that “An of the to act obligation this court declared awareness within the laws ... general is included body regulating society section statutory definition” of both kinds malice. This construction of (see, 188 was v. Sedeno consistently e.g., People followed our courts 703, 913]; (1974) 10 Cal.3d P.2d v. Poddar People Cal.Rptr. [112 342]; (1974) 10 People Cal.3d 518 P.2d Cal.Rptr. 386]; Carpenter (1979) 533-534 Cal.App.3d Cal.Rptr. 282]), v. Fusselman and was 303 [120 (CALJIC (4th ed. incorporated approved jury into the instructions No. 8.11 however, 1979)). Conley Legislature repudiated expressly “An aware by adding declaring construction sentence within body regulating ness to act laws obligation general

829 1981, 404, (Stats. is not included within the definition of ch. society malice.” 1593, 1103, 6, added; (1991) 54 People italics see v. Saille Cal.3d § 364, 588].)3 1113-1114 820 P.2d Cal.Rptr.2d [2 I a recognize “Legislative that silence after a has construed statute court gives rise at most to an inference or arguable acquiescence passive 1119, 897, (People (1969) v. Daniels 71 Cal.2d approval” Cal.Rptr. 1127 [80 225, 677]), 459 P.2d 43 A.L.R.3d and that the of such presumption acqui (Harris escence in determining “is conclusive intent” v. legislative 1142, Capital (1991) Growth 1156 Investors XIV 52 Cal.3d Cal.Rptr. [278 614, 873]). 805 P.2d But in it circumstances at least be appropriate may For in the recent case Freedom Inc. persuasive. example, Newspapers, v. 821, Orange County Employees System (1993) Retirement 6 831 Cal.4th [25 148, 218], P.2d in Cal.Rptr.2d 863 intent of the determining Legislature when it in enacted a statute 1968 we gave weight to fact that “the has Legislature allowed the Court of Appeal’s opinion single 1978 [a decision construing the to govern application statute] statute] [the Here past years.” viability as an element fetal murder has been instructions, recognized multiple published and in opinions approved jury and has Legislature 14- acquiesced construction even than longer years.

More important, statutory here—the language issue 1970 amend- ment to section extending the crime of murder the killing of “a itself fetus”—was enacted in direct and vigorous judicial to a response (Keeler) opinion with which the Legislature If Legislature had disagreed. disagreed also years few later with subsequent judicial opinions {K.A. Smith and its progeny) limiting the statutory prohibition against killing “a fetus, fetus” to the killing of viable it surely spoken would have and again, however, equally vigorously. To this day, has Legislature remained silent and taken no remedial action. these circumstances its acquiescence is persuasive evidence itsof intent.

Ill The lead opinion is curiously proportioned. It devotes over nine-tenths of issue—i.e., its discussion of the main whether viability is an element of fetal Smith, murder—to task relatively easy refuting the rationale of K.A. legislation 3The same likewise added declaring prove sentence “To killing premeditated,’ ‘deliberate shall not necessary prove the defendant maturely 1981, meaningfully upon (Stats. 404, gravity reflected of his her act.” ch. added.) italics This had § court contrary construed section to the a series beginning decisions 61 Cal.2d Cal.Rptr. Wolff (See, People Horn e.g., P.2d 959]. 524 P.2d ante, 803-810; ante.) fn. (Lead 751. see supra, opn., pp. much task of But the lead a few lines on the harder spends only opinion in the intent when it amended section 187 1970. determining Legislature’s Indeed, task, the saying Legis- the lead on that essentially gives up opinion the of the word of the regard meaning key lature had no intent at all with the term suggests “The of the amendment legislative history amendment: left after the debated whether deliberately Legislature ‘fetus’ was undefined ante, (Lead opn., to limit the to a viable fetus.” scope statutory application 803.) as a whole conducted Legislature” This statement “the p. implies that the whether the amendment should question full-scale “debate” on fetuses, limited to viable and that it was because of that debate that precisely This is a the declined to that limitation. Legislature “deliberately” adopt the lead As its sole gross exaggeration legislative history. support Comment, Child, 2 Pacific L.J. Killing cites An Unborn opinion the 174. But that source that when the bill that became says only houses, in the one of the amendment was heard a committee of one of committee members as one of his opposing argued grounds opposition (Id. 173-174.) at This that it should be limited to viable fetuses. expressly pp. by is a far from a and decision the matter cry full-scale debate on Legislature. Even a formal statement the author of a bill after it is passed is entitled to “when it is a reiteration of discussion weight only legislative rather than leading merely events amendments adoption proposed (California Diego an Teachers Assn. v. San expression personal opinion.” Dist. Community College When, here,

P.2d it is of a merely personal posi- expression tion—a fortiori when voiced the bill in a commit- merely by opponent hearing—it determining tee “is not a for consideration proper subject (id. 701). intent” This is because such Legislature’s expres- primarily sions of “do not reflect the views of other members opinion necessarily [of (Freedom Newspapers, Inc. v. Legislature] who voted for [the bill].” 821, 831.) Orange County Employees System, supra, Retirement 6 Cal.4th The lead reasoning violates these settled rules of construction. opinion’s

The lead next asserts that “The was aware that opinion Legislature clearly fetus,’ it could have limited term ‘fetus’ to ‘viable for it specifically rejected amendment that the fetus be at least 20 weeks proposed required ante, (Lead before the statute Here gestation woiild apply.” opn., the lead does not it com- opinion simply exaggerate legislative history, It true pletely misreads it. its version bill that became original Assembly the 1970 Bill No. amended amendment—Assembly 816 as section, being’ on June that “As used in this ‘human 1970—provided includes a fetus which has advanced to or the 20th week of beyond uteroges- tation.” It is true that the deleted language also was from bill quoted later, when it amended on 1970. again Assembly days July assertion, however, the the lead opinion’s quoted language Contrary do with to do with abortion and nothing viability everything had It had with nothing undisputed to do because “quickening.” Rather, are the 20-week medical fact that fetuses not viable at weeks.4 Bill No. 816 for Assembly date was inserted into the first version of cutoff with different of a conflict wholly purpose avoiding Therapeutic Code, Act, (Health & three earlier. Saf. adopted only Abortion years § et One of that that “In no event shall the seq.) provision act declared termination week of pregnancy] be after 20th approved pregnancy.” [of Code, (Health 25953.) & same date By Saf. cutoff into incorporating § 187, amendment Bill proposed to section No. 816 Assembly simply it to make fetal would not sought clear murder statute apply This even therapeutic abortions. was made clearer when the same purpose 17,1970) amendment that deleted the 20-week (July Assembly from proviso Bill No. 816 substituted therefor a the same effect proviso having but Act, referring to the expressly Abortion that the fetal Therapeutic declaring murder statute did not act that apply any “complied the Therapeutic Act, Abortion Chapter (commencing 25950) with Section of Division 20 187, of the Health and (Now (b)(1).)5 Code.” Safety subd. § Having concluded that the erroneously Legislature had no intent with to the of respect word meaning key “fetus” the 1970 amendment to the lead opinion proceeds to on the legislate subject by supply fetus,” ing assertedly missing definition: “a the lead “is says opinion, defined as ‘the unborn in the offspring after postembryonic period, major structures have been (Sloane-Dorland outlined.’ Ann. Medical-Legal Dict. (1987) 281.) p. period This occurs humans or eight ‘seven weeks after ante, (ibid.). .” (Lead added.) . . opn., italics The p. lead fertilization’ opinion its new repeats definition concluding that the malicious killing a fetus is murder under section 187 as as the can long state show the fetus has progressed “beyond the embryonic stage (Lead seven to weeks.” eight ante, 815.) opn., For a number it unlikely reasons that such highly Legislature’s intent. usually earlier, 4“Viability placed weeks) at (28 about seven may months but occur even (Roe Wade (1973) 24 weeks." 410 U.S. L.Ed.2d S.Ct. “ However, uniformly studies show that ‘the odds of survival become infinitesimal before ” twenty-three (Daniels, 18.) weeks.’ Expense At expert testimony Women’s fully the case at supported bar these conclusions. turn, 5In the Therapeutic Abortion had adopted Act the 20-week date cutoff from its predecessors jurisdictions. in other prohibited The common law “quickening” abortion after Keeler, (see, e.g., Burke, (dis. 625-626 (maj. opn.), 640-641 opn. Acting J.)), C. traditionally weeks was to be upper period believed limit of the laws, “quickening" likewise, which therapeutic occurred. modern abortion the cutoff date ” weeks, “usually selected roughly (Comment, is about 20 about the ‘quickening.’ time of The Role the Law 658, 666, Homicide in Fetal Destruction 56 Iowa L.Rev. fn. matter, As a preliminary it is obvious that the have Legislature would not defined stage, the fetal as does the lead as “seven or opinion, beginning weeks after eight” doctors so conception. Perhaps may speak imprecisely, legislators but not: the may bench and bar need to know whether liability fetal murder under section 187 attaches at seven weeks after or at conception eight weeks after the choice cannot be left to the whim the conception; authorities, when, here, prosecuting make the especially may literally difference between life and death. We cannot imagine Legislature pre- scribing, for age of 13 or that “Children under the 14” example, are Code, 26, incapable (see of committing One), crime Pen. or—even par. § more relevant here—“the death shall not penalty be imposed upon any who 17 or 18 at the time of the commission of the person is under the age id., 190.5, (see crime” (a)), subd. or—to go § from sublime to ridiculous—“no shall drive a vehicle person at a upon highway speed Code, 54 or 55 miles than greater (see hour” per 22349). Veh. The lead § opinion’s careless statement that for fetal murder liability attaches “seven or weeks after eight” is no conception less improper.6 Yet that least of the problems with the lead new opinion’s definition of “fetus” section 187. Because liability after seven weeks necessarily weeks, includes liability after we eight assume that may fairly prosecutors faced with the lead opinion’s imprecise definition will for the more opt inclusive and figure murder when charge the fetal death occurs at seven weeks. Do my have colleagues any idea what a seven-week-old product looks like? conception with,

To begin it is At tiny. seven weeks its “crown-rump length”—the only dimension that can be accurately measured—is mil- approximately limeters, slightly over half an inch. (Arey, Developmental Anatomy 104.) p. It weighs three approximately grams, or about one-tenth of (Eichler, an ounce. Atlas of Comparative 186.) In Embryology p. terms, more familiar it is roughly size and weight of peanut.7 If moreover, this tiny creature is examined under a magnifying glass, its appearance remains less than human. Its bulbous head takes almost half up 6The by defect is not opinion’s cured the lead period additional remark that “This occurs in (ibid.), eight humans ‘seven or and is a weeks after fertilization’ by determination be made the trier ante, (Lead opn., added.) p. italics The trier of does not determine offact.” fact legal age attaches; issue of the liability at which for fetal murder is the sole responsibility Legislature. attaches, Legislature If the determines that liability say, such weeks, at seven the sole task of the trier of fact is to determine from the evidence whether the particular fetus in the case before it age. had or had not reached that eight at product 7Even weeks the conception only weighs only measures one inch and three-quarters (20 of an (15th ounce. Encyclopaedia 1990) Britannica ed. It is then the size of peanut in its shell. downward; its are body eye widely spaced; and is bent its sockets sharply forward; are hands feet still pug-like open paddle-like its nostrils its webbed; As R. Cynthia aptly and retains a tail. Professor Daniels vestigial book, fact, “In it in at supra, her recent At Women’s put Expense, page ill most features the fetus are defined that it would eight weeks so it, difficult uninformed observer to viewed its recognize entirety, And in the relied the lead distinctly by human.” as concluded Comment on “A alien to human seems being beings so what we know to be opinion, (Comment, Killing worth made the hardly being subject murder” anof Child, 185). 2 Pacific L.J. Unborn at p.

The contrast between such a alien creature tiny, fully formed 18-inch, 34-week-old, (2 viable child” in Keeler “5-pound, Cal.3d living, Burke, (dis. J.)) opn. Acting C. to be I can ignored. too obvious believe that enacting 1970 amendment intended to Legislature make it murder kill a I viable fetus like fully baby. Teresa Keeler’s But murder—indeed, cannot the Legislature believe intended to make it capital murder—to cause the death of an the size of a object peanut.

IV It is even more unlikely intended Legislature many conse- of the lead quences opinion’s new definition of “fetus” in section 187. That definition should therefore be in light reconsidered of the settled rule that “When arises in uncertainty question statutory interpretation, consider- given ation must be to the will consequences that flow from a particular interpretation. In this regard, presumed Legislature [Citation.] intended reasonable results consistent with expressed its not purpose, absurd XIV, consequences. (Harris Capital Growth Investors supra, [Citations.]” 1142, 1165-1166.) First, under the lead definition a opinion’s may subject to a person conviction of capital murder for causing the death an object that was literally invisible to and everyone, hence that the person had no reason to know even existed. A woman whose reproductive system an imma- contains ture fetus a fraction an inch and long weighing a fraction of an ounce does not, course, fact, In if appear pregnant. she one of many women with some in her irregularity menstrual she cycle, may herself not know she is pregnant: “quickening” does occur until two or three later. months (Keeler, Cal.3d at fn. such Unless a woman knows she is defendant, and pregnant has disclosed that fact the defendant no has way knowing she is a fetus. carrying

Nor is problem this limited fetuses that are “seven or eight” weeks old. Although length time that a woman can be her pregnant without to such factors as her becoming according condition’s noticeable varies fetus, of her and even the of her height weight, style clothing, size the case at bar that it can extend well into her Here pregnancy. demonstrates in her her date of Flores testified that “showed” on the opinion pregnancy 1, 1991; March but defendant testified to the shooting, contrary, there was evidence to him. It was that Flores persuasive support undisputed 5,1991, was an her only inch over five feet on last height, yet February obstetrician, visit her she While was not weighed 191 she pounds. weighed again on the date of the at that of her she shooting, stage pregnancy would have still in the gained weight more three and one-half intervening Moore, M.D., weeks. On this record Thomas perinatologist, experienced testified that his it is “not the date opinion shooting on likely” a woman of her when Flores’s stature would have showed clothed pregnancy and standing upright.

The jury with Dr. Moore. both count evidently agreed (attempted murder) and count 3 premeditated (robbery) alleged the information five-year enhancement section 12022.9. The elements of that provided (1) enhancement are that during the commission of a a defendant who felony “knows or reasonably should know that the victim is inten- pregnant” inflicts on her her tionally injury results termination of pregnancy. The instructions that to find the true the must emphasized allegation jury find “the mental state . . . that defendant knew or necessary reasonably should have known that the victim returned verdicts pregnant.” jury untrue finding allegation on both counts. Because the second and third elements of the allegation were and found true undisputed jury verdicts,8 other it follows that the on which the only ground jury could have found the untrue was allegation that defendant neither knew nor reasonably should have known that Flores was pregnant.

Yet the expert testimony agreed that Flores was between 23 and 25 weeks—approximately 6 on the date of the This months—pregnant shooting. is the very threshold of viability: expert witness on a recent reported study that at 23 weeks the showing survival rate of the fetus is approxi- mately 7 at weeks 35 The percent, at 25 weeks 47 percent, percent. case at bar thus demonstrates how the risk of for fetal murder long liability run may under the lead view before the actor either or has opinion’s knows reason to know that the victim of the offense I even exists. cannot believe the intended Legislature such an of for the crime enlargement liability of murder. capital

Nor is the problem solved the fact that such imposes if the defendant liability only kills the fetus “with malice aforethought.” jury (count 1) 8The convicted defendant of murdering the fetus and found true the allegation (counts that he intentionally great injury 3). inflicted bodily on Flores 2 and statute, may the the obtain a fetal Despite plain wording People refer, I murder conviction cases without malice all: many proving course, I turn brought theory. to cases on a murder. to that theory felony no would it from

Although reading one realize lead case opinion, a truly at bar is novel: it is first in which case California reported fetal or knowing having has been convicted of murder without reason person know the In to existence of the victim. all but one of cases the prior defendant knew well he that woman he assaulted was very pregnant; fetus, intended at least to kill the and thus manifested malice toward express Saille, the fetus within the meaning (See People supra, of section 187. v. Cal.3d kill”].) malice “an intent [express unlawfully Keeler, Two of these cases resembled the closely supra, facts Cal.3d each, 619: the defendant knew his wife former wife pregnant, or and assaulted her for sole an end to the purpose putting pregnancy; woman, although he did intend kill not he to kill intended plainly Smith, 483-484; fetus. (People Apodaca, v. supra, 76 K.A. Cal.App.3d supra, 753-754.)

Three husband, other presented cases a related scenario which the behalf, acting another on his knew the wife was and killed pregnant her stroke, order to rid her both and the fetus in manifesting one thus Hamilton, malice towards both express (People victims.

1142, 1151-1153; 1189, 1200-1201; People Bunyard, supra, 45 Cal.3d (Robert Porter), v. Smith supra, 188 Cal.App.3d 1495,1499-1504.) In case, Annie, the last cited for killed Smith the wife example, lifelong of his friend, Skaggs, she knowing was six to seven months pregnant. finding kill, the requisite intent to the court reasoned: “the very of the purpose murder . . . was free Skaggs encumbrance of wife and child so could Skaggs pursue ministerial career. . . . very motivation the murder was the itself. This pregnancy was not a murder expectant anof mother the murderer did not know and could recognize If pregnant. convicted jury Smith of degree first murder of both Annie of baby did, Skaggs, as it Smith necessarily had the intent to kill both mother and (188 child.” added.) Cal.App.3d second italics I have no difficulty believing that by enacting the 1970 amendment the Legislature intended to such punish intentional as fetal murder. But not this here fetus, case: defendant did not intend kill the Flores that, found, the reason simple as the jury he neither knew nor had reason to Indeed, know it existed. he did not even intend kill Flores herself: although he was charged count with the and deliberate premeditated Flores, him murder of the of that attempted jury acquitted charge, convicting him instead of the (§ lesser included offense of assault with a firearm. (a)(2).)9 subd.

Lacking proof of both malice and the premeditation, prosecutor sought murder conviction on that did not him to defendant theory require prove intended to kill the invisible fetus—the murder. That theory felony theory had been in the only invoked fetal murder case that did not involve an prior fetus, Henderson, intentional killing People of the 1129. There the defendant Henderson and killed and Philip robbed Ray Angie Boggs; Angie was and her death pregnant caused the death of her murder, fetus. defendant was convicted of and three counts of robbery and the murder convictions were upheld on a robbery felony-murder theory. But the case two distinguishable respects.

First, the defendant must have been well aware that was Angie pregnant. At the time of her death her fetus was 30 weeks—IVi months—old: it was And, bar, therefore both viable and visible. to the case at was contrary Angie not a whom the stranger defendant had encountered the only moments before murders; rather, the defendant had moved with and her husband Angie and had lived with them their for some six weeks before apartment Second, and robbing killing them. although the convicted the defendant jury of two counts of first murder in the degree deaths of and Ray Angie, they him convicted of only second murder in the degree death of fetus. Angie’s under Yet rule the murder felony-murder fetus was murder first degree a matter of law no less (§ 189), than the murders of its parents and the were jury doubtless so instructed. to follow that law By declining and instead a verdict of murder in returning the second degree, jury their apparently (See exercised power nullification. generally, Dillon 490-493 668 P.2d 697] Kaus, (conc. J.).) opn. so were doing, jury for a “obviously looking to avoid the way harsh consequences (Id. of the rule.” felony-murder at p. 490.)10 Henderson,

But if the result was harsh in People v. supra, 225 Cal.App.3d 1129, it will be even harsher under the lead opinion’s new definition of 9At sentencing hearing approved court that verdict: “I don’t think he intended to kill lady. I think jury right made the decision on that.” jury 10The power exercised their of nullification as to another charge Ray murder as well. son, Jr., Angie’s one-year-old commission Raymond, was likewise killed in the robbery, prosecution but the prove specific unable to cause Apparently of his death. jury for this reason the returned a verdict of voluntary manslaughter Raymond, in the death of Jr., even though the correctly defendant had been charged degree with first in that count. Interestingly, in a separate jury trial a second against heard the same evidence Velma Henderson, wife, victims; Philip’s degree returned first murder verdicts as to four on all however, a defense motion at sentencing, the court reduced Velma’s convictions to the same “fetus” in section Under will 187. that definition the rule felony-murder make a offense out of death of even a nonviable and invisible capital fetus that the actor neither knew had existed. As will nor reason to know this is such a case. appear,

Here the left no he prosecutor doubt his murder: as theory felony in “In there are explained jury closing argument, some homicide cases involved, many different theories of murder that on the may depending facts in the case. this there particular theory, case one murder only that is what we call felony . . . .” Dillon, 441,475,

It has been clear at People least since v. supra, 34 Cal.3d that “as a matter of law malice intent [including is not an element of kill] felony murder.”11 Again made sure the prosecutor jury understood implications that rule: he stressed that “the then argument question becomes, did the occur killing the commission or during attempted commis- sion of a The I robbery. first thing want to note this when we you doing are talking murder in this in- particular it does not setting, require intentional, tent. ... It doesn’t if matter that death was unintentional or accidental.”

The instructions confirmed the prosecutor’s advice. The court first told the jury to convict defendant of murder in this case the need prosecution killed, prove only that “1. A viable human fetus . . . was The 2. killing [f] [ft| was unlawful. 3. occurred during commission or at- tempted commission of a There robbery.” was no need to intent kill prove or any other kind of malice aforethought. Nor was it necessary that fetus be the object underlying (See, felony. People e.g., Welch Cal.3d 118-119 P.2d

On the record element—i.e., this case an affirmative finding of the third that the killing of the fetus occurred during commission of a robbery or foreordained, attempted robbery—was because defendant admitted in his direct he testimony that intended to rob Flores and his counsel conceded the fact closing argument. But finding not made only the killing felony murder, it had two additional consequences. As its second consequence, fixed the degree of the (§ murder at the 189) first even degree as though, above, explained the jury found that defendant did not intend to kill anyone: degrees offenses and Philip’s, fairness, thus in effect ratifying, presumably for reasons of jury’s the first acts of nullification. quotation Dillon, 11The is from opinion the lead supra, 34 Cal.3d however, concurred in justices. three question, On this the lead opinion expressed the view, majority because justices two other expressly reasoning concurred in its and conclusion. (See Kaus, pp. (conc. id. at opn. J.), Richardson, (conc. J.).) opn. & dis. thus the court further instructed the “The unlawful jury, killing of a viable fetus, intentional, accidental, human . . . whether unintentional or which occurs the commission or during commission attempted robbery, murder in the first degree when the had the perpetrator intent to specific (Italics commit such robbery.” added.) And as its third consequence, same finding also constituted a “special circumstance” increasing pun- ishment (§ from a term of 25 life years possibility parole (a)) subd. to a sentence of death life or without imprisonment possibility 190.2, (§ (a)). subd. parole

Defendant was sentenced to life without imprisonment possibility of He was 20 old at the parole. years time of the He events. had no prior felony convictions, and only two minor juvenile offenses which the prosecutor himself characterized as an “insignificant criminal history.” Viewing of life statutory penalty without imprisonment possibility parole circumstances, conceded, light of these the prosecutor “It seems a sense like a waste of a life young and to some degree must be considered that.” The court agreed that defendant “has an criminal insignificant background,” and echoed the view prosecutor’s of the sentence by saying, “one of the emotional issues that underlies sentence here is that it is so sad to see a life young thrown away. And that’s what’s here with Mr. Davis.” happened course, This draconian result was because of possible, only the draco- nian nature of the felony-murder rule itself. As we in People observed Dillon, 476-477, omitted, supra, 34 Cal.3d at pages footnote “the kinds two of first degree murder this state differ in a fundamental in the case respect: of deliberate and murder premeditated with malice aforethought, the defend- ant’s state of mind with to the homicide respect and must be all-important doubt; proved beyond reasonable in the case of first degree felony it is entirely irrelevant and need not be at all. proved From this profound legal distinction, wit, difference flows an factual equally significant first degree felony murder a far wider encompasses range of individual than culpability deliberate and premeditated murder. It includes only latter, but also a of unintended variety homicides resulting from reckless behavior, accident; or ordinary negligence, or it embraces pure both calcu- lated conduct and acts committed panic or or under the dominion of rage, illness, alcohol; mental drugs, and it condemns alike consequences are highly probable, conceivably possible, or wholly unforeseeable.”

Under the lead new opinion’s definition of “fetus” another will category be added to this first litany: degree murder will extended felony death, include in the any commission aof listed of a nonviable and felony, invisible fetus that the actor neither knew nor had reason to know existed. which, here, And that will liability not be limited to cases in the defendant with a It will deadly assaults the woman intentionally pregnant weapon. extend, for to the scenario: an unarmed example, following 18-year-old hours, no criminal record a during enters store business to intending shoplift him, a can of when a accosts his nerve fails and spray paint; security guard door; he bolts he his haste knocks a woman to accidentally shopper floor; unknown anyone woman is weeks’ and pregnant, trauma of the fall her causes to miscarry. decision,

Before such a would be at most of sec- today’s youth guilty 459, 460; see, (§§ degree (1943) ond burglary e.g., People v. Corral 66, 172], cited) 70-71 P.2d and Cal.App.2d cases and would be [140 either punishable by county jail time of to one or a term of up year prison 18, (§§ 461); sixteen months or three two or the fetus was not years because viable, its death would not have been murder on After any theory. today’s decision, however, this teenager could also be found of first guilty degree murder of the (cf. fetus on a burglary People v. Earl felony-murder theory 894, (1973) 29 Cal.App.3d 831]); 898-900 that event his Cal.Rptr. [105 punishment (§§ would at least be for 25 to life imprisonment years (a)), subd. and he would be subject burglary special-circumstance which, true, allegation if found would of either require punishment 190.2, death or life imprisonment (§ without possibility subd. parole (a)(17)(vii)).12

I cannot believe the Legislature intended the 1970 amendment to accom- so plish absurd a when amendment result—especially affected a statute requires of “malice finding aforethought” conviction support 187) (§ and had nothing to do with the statute that defines felony (§ 189). Yet this is where the lead opinion’s inexorably definition of “fetus” takes us. addition, thus by expanding rule the scope felony-murder

lead opinion violates another settled policy of this court: almost three decades ago, the leading case of v. People Washington (1965) 62 Cal.2d 130], P.2d Cal.Rptr. [44 Chief Justice stressed Traynor that “The rule felony-murder has been criticized on the that in grounds almost all cases which it is it is applied and that it erodes the unnecessary relation between criminal Al- liability moral culpability. [Citations.] Code, though it is the law in (Pen. 189), this state it should not be extended § beyond any added, rational (Italics that it designed to serve." fn. function 12Indeed, to reach this result necessary would not even be youth for the to touch the woman. It would be sufficient if the sight oncoming stress induced and sounds of the youth faint, fall, pursuing guard and the enough were severe thereby to cause her to (Cf. miscarry. Hernandez Cal.Rptr. 166] victim, did not touch [robber but victim nevertheless died of stress-induced heart attack held, during robbery; degree murder].) first felony omitted.) We have and reiterated his until this respected day admonition Dillon, 462-463, (see, e.g., People 34 Cal.3d at citing numerous pp. cases), most in People v. Patterson 621-622 recently demonstrates, 549], 778 P.2d As the scenario foregoing however, to rule apply felony-murder to the unintentional death of a nonviable and invisible had fetus actor neither knew nor reason to will know existed extend the rule rational function it clearly beyond any designed to serve.

The cases also illustrate that irrational one of punishments may provoke First, two People undesirable as occurred in v. Hend- responses. apparently erson, 1129, supra, 225 be driven to exercise its Cal.App.3d jury may Dillon, Second, of nullification. we did in power People as v. 477-489, Cal.3d at pages a court hold that on the facts may compelled be to of the case a first murder degree conviction is a violation of the state cruel or unusual clause. I believe the intended punishment Legislature cannot either encourage the 1970 amendment to section 187.13 response by Next, the lead new definition of “fetus” will raise difficult opinion’s in questions causation for murder a fetus. prosecutions nonviable a a Although felony-murder conviction on does not of a theory require proof (see, “strict causal relation” between and the v. felony e.g., Welch, 106, 118), supra, 8 Cal.3d act during some defendant commission must at least have a “substantial factor” felony been to the death contributing (e.g., People Stamp 598]), Cal.Rptr. just as is for convictions on a required theory or malice express implied (e.g., People Caldwell 274]). 681 P.2d Here the medical problem reality: is seven lowering age weeks of a fetus whose death can trigger murder the lead prosecution, opinion overlooks fact that the more fetus, immature the the more die in likely is to event any by spontaneous factors, abortion.14 abortions are caused includ- Spontaneous by variety of fetus, abnormalities, ing genetic or in the developmental defects uterine trauma, illness, abuse, maternal or substance toxins the fetal or maternal opinion 13The lead recognize problem, part, by protesting seems to this at least in that it does question felony not reach the “whether the constitutionally doctrine of could be applied” injury when the fatal by agency to the fetus is caused other than a defendant’s ante, (Lead added.) “direct assault on the opn., p. mother.” fn. italics The problem, however, is not so injury much the cause of the fatal to the as it and fetus is visible, visibility of the fetus itself. If the fetus is viable and the defendant is on notice of the mother’s felony-murder condition under settled for the death principles should liable of the fetus committing even without a “direct assault on the It when the fetus is mother.” opinion’s nonviable and invisible that the lead may construction of section 187 lead to absurd consequences of the kind discussed above. (5th 14Spontaneous (Stedman’s miscarriage. abortion is the medical term for Dict. Medical 1982) Lawyers’ ed. environment, generally And are more common than is they etc. much realized, “The incidence of in the early particularly stages pregnancy: all pregnancies. to be 15-20% of spontaneous generally abortion believed abortions, however, or are unreported Substantial numbers [spontaneous] subclinical; incidence to be are have estimated the true very early some Abortion, Spontaneous all high (Rogge, as 50-78% pregnancies].” [of omitted.) (Niswander 1987) Manual of fn. Obstetrics edit. mere fact fetus time after the Accordingly, the that a aborts some by woman it is struck another does carrying intentionally unintentionally causing mean the act the fetal necessarily “substantial factor” death. in which the cases fetus was nonviable and immature prosecu- causation, or, tor could well difficulty conversely, jury have proving could be into when no misled the actor of fetal murder such convicting murder in fact occurred. I believe the intended Again Legislature cannot either result the 1970 amendment 187.

V Finally, lead construction of the amendment will make opinion’s 1970 our murder law in the unique nation in its no other severity: appears state is it a offense to capital cause death of a and invisible nonviable fetus that the neither actor knew had reason nor to know existed. with, in begin

To of states the a fetus is not a majority killing of homicide any degree: “The have majority jurisdictions which con- Keeler, 619, fronted the issue has followed ... the term holding ‘fetus’ does not fall within the definition of a human under criminal being statutes term (State unless the is so defined v. Trudell legislature.” (1988) 511, 515].) 243 29 Kan. P.2d In jurisdictions those a live birth [755 remains a (See to a prerequisite conviction homicide. Meadows v. (1987) 584, State 585-586], 291 Ark. 105 S.W.2d numerous citing [722 cases; cases, see, for later 183 e.g., Billingsley (1987) State 850 Ga.App. 451, 452]; 1365, 1991) S.E.2d [360 State v. Keller 592 So.2d (La.Ct.App. 1366; 1, (1989) State v. 2-4]; Beale 324 N.C. 87 S.E.2d State v. Evans [376 1987) 880, 881-884.) 745 (Tenn.Crim.App. S.W.2d are, course, There jurisdictions that have enacted statutes criminalizing the killing of a fetus.15The lead cites seven opinion (Lead such jurisdictions. 808, ante, 22, 1.) opn., fn. My research has turned at least 2with up jurisdictions additional so as a matter of law. holding common For conve- nience I have grouped these into three jurisdictions categories. distinct

First, in 13 jurisdictions at least killing of a fetus criminal is not unless the fetus is gestational viable has reached a age more significantly

15Like the opinion, lead I do not refer in this context to abortion laws. advanced than the “seven or the lead eight weeks” prescribed by opinion. Thus Iowa any who kills a fetus “after the end of the person intentionally (Iowa second trimester of the crime pregnancy” commits the of “feticide.” York, 707.7.) Code In Ann. New “a killing homicide includes § or an child person unborn with which a female has been for more pregnant than (N.Y. 125.00). weeks” Penal Law In twenty-four where England, § arose, law rule common that fetal murder is a crime first statute now provides who causes a fetal death commits the any person intentionally crime “child destruction” the fetus was born provided being “capable alive,” and the fact that the woman had been for a “pregnant period twenty-eight weeks or more” is facie prima proof fetus was viable. Act, 1929, (Infant (Preservation) Life & 20 Geo. ch. § In South Carolina the state’s court highest has to its adopted, pursuant law, common law declare power to substantive criminal the rule that the (State intentional of a fetus is murder if the killing fetus was viable. v. Horne (1984) S.C. S.E.2d in Massa highest court [319 viable, chusetts held in has so two cases in which the fetus was fact but has not taken a on yet position whether is a legal prerequisite (Commonwealth such liability. v. Lawrence Mass. 571, 575, [murder]; N.E.2d fn. Commonwealth v. 392 Mass. Cass 6] homicide].) N.E.2d fn. 8] [vehicular Eight states have enacted statutes of “an unborn criminalizing quick child.” In three if of those states the act is criminal the unborn child is 200.210; (Nev. killed by to the mother. Rev. “any” injury Stat. Okla. Stat. § 713; tit. 9A.32.060.) Ann. Wash. Rev. Code Ann. the remaining § § states, however, five the if act is criminal the unborn child is killed only “by any to the mother of such child if injury which would be murder it resulted 782.09; in (Fla. the death of such mother.” Stat. Ann. Ga. Code Ann. § 16-5-80; 750.322; 97-3-37; Mich. Laws Ann. Comp. § Miss. Code Ann. § § 11-23-5.) R.I. Gen. Laws Ann. Yet in seven of those states—all except § Georgia—the resulting fetal homicide is as manslaughter, punished only noted, while in it is deemed in Georgia “feticide.” As all states there is eight no crime unless the unborn child when it was killed. all but “quick” one of those states the statute does not define as herein- “quick”; explained above, is said between the and 20th “quickening” traditionally to occur 16th term, weeks of And in the one state that does define the pregnancy. legislature given has the same “quick” meaning as “viable”: “For the pur- of this poses child’ shall mean an child . ‘quick unborn . . who is so far and matured as to be developed the trauma of birth capable surviving with the aid (R.I. of usual medical care and facilities available this state.” 11-23-5, Gen. Ann. Laws 3d par.) §

The second category jurisdictions of those which the composed legislature has declared expressly that the of a killing product conception to our section regardless gestational age; contrary is criminal therefore, of its nonviable fetuses these to both viable and purport apply statutes to and There are at six states this zygotes.16 least embryos—even offense. In three crime is not but a lesser Thus category. modeled states discussed above that eight Arizona’s statute is on those of child an killing criminalize the of an unborn means of to its injury mother; unlike the Arizona not to a just those statutes measure applies child but an child “at of its “quick” any stage develop- unborn unborn ment”; statutes, however, like is deemed those the Arizona offense man- 13-1103.) (Ariz. Rev. and New slaughter. Stat. Ann. Arkansas Mexico § have it an inflict an making identical statutes offense to on essentially injury woman, in the pregnant commission of a that causes felony, miscarriage stillbirth; each “the defines as normal devel- miscarriage interruption of of the fetal opment fetus” stillbirth as death útero of the “irrespective 5-13-201; (Ark. duration of Code Ann. N.M. Stat. Ann. pregnancy.” § 30-3-7.) In § Arkansas offense is deemed first and is degree battery punishable by less than five more than imprisonment twenty nor (Ark. years 5-4-401); Code Ann. in New Mexico the offense is called § “injury to pregnant woman” and is for three punishable by [a] imprisonment $5,000 years 31-18-5). (N.M. fine of possible Stat. Ann. § Three other have states enacted making statutes of a special circumstances, fetus homicide under various but fetal murder none punishes as severely as our section 187. Thus Illinois the offense is called “inten child,” tional homicide of unborn statute an unborn child defines “any individual human from until (Ill. fertilization birth.” species 5/9-1.2, Stat. ch. Comp. (b).) Ann. subd. But the statute further § provides act is not homicide unless actor “knew that the actually woman (Id., was pregnant.” (a)(3).)17 subd. And the for this punishment murder, crime “shall be the same as for first degree except that the death (Ill. 720, 5/9-1.2, penalty may imposed.” not be Stat. Ann. ch. Comp. subd. § (d), added.) italics zygote 16The product conception embryo stage. after fertilization but before Britannica, (26 Encyclopaedia 710.) supra, p. 17It is knowledge clear that pregnancy actual of required. predecessor is The statute’s “knew, was a criminalizing feticide law the act reasonably if the actor or should have known circumstances, under all (Former pregnant.” was mother Ill. Rev. Stat. ch. of 9-1.1, par. (a)(4), added.) subd. italics Legislature Illinois deleted italicized clause 1987; when present it substituted wording prosecution since that date the has been

required prove to knowledge actual a pregnancy for conviction of intentional homicide of an unborn example, child. For in the case by opinion, People relied on the lead v. Ford 1202], 221 Ill.App.3d 354 [Ill.Dec. 581 N.E.2d the defendant assaulted his Karonda, girlfriend, fetus; the purpose eight-and-one-half-month-old for her killing alia, because, court affirmed the conviction inter “The evidence case was sufficient in this prove beyond a reasonable doubt that knew defendant Karonda . . . .” pregnant was “murder of an unborn is called Dakota offense In Minnesota and North “conceived, child,” offspring but not born” yet defined as the the latter is 609.266, 609.2661; Cent Code N.D. (Minn. Stat. Ann. human being. §§ of a 12.1-17.1-01, is murder of 12.1-17.1-02.)18 In Minnesota the offense §§ with child either if kills the unborn in the first the actor degree unborn child or child death of the unborn “with intent to effect the premeditation event, felonies; in another,” either certain serious listed or while committing (Minn. however, Stat. Ann. life is imprisonment. the maximum punishment if severely punished the most 609.2661.)19 In Dakota the offense is North § inor the commis- or malice implied child is killed express felonies; the unborn maximum in either event the listed yet certain serious sion of 12.1-32-01). (N.D. Cent. Code § is life imprisonment penalty in which of those jurisdictions composed last category The third and for a conviction gestational age minimum neither a prescribes the statute gestational regardless that it applies murder nor declares expressly fetal rather, such a matter. California is silent on the the statute is age; facially state Utah is the only five others. Of these and there are at least jurisdiction, California, that, under its general of a fetus killing like criminalizes the being, “another human as the murder statutes: it defines homicide 76-5-201, But (1)(a).) (Utah Ann. subd. an unborn child.” Code § including California, if the actor offense only crime is a capital unlike Utah the a even in knowingly,” or “intentionally unborn child caused the death of the bar, If, 76-5-202, case at (1)(d).) (Id., subd. felony-murder case. § not the actor did a but felony in the commission of listed the death occurred (id., noncapital the crime is kill “intentionally knowingly,” (id., five years less than 76-5-203) for not by imprisonment punishable § 76-3-203). § treatment and is given special

In four states the offense remaining In of these states in California. two much less than severely punished an unborn child is to the definition: qualifying Dakota statute adds a clause 18The North “which, beyond would action of the actor yet offspring bom but for the conceived but not 12.1-17.1-01, subd. (N.D. Cent. Code born alive.” subsequently § reasonable doubt have been Lacking ambiguous language. added.) construing this find no North Dakota case italics I impose that the added clause does I am inclined to believe guidance, such crime, have fetus would embryo previable even an or a were not for the requirement—if liability to cases in which to limit born alive—but meant “subsequently” been premature death. act was the sole cause of the defendant’s defining the offenses very thorough, separately statutory scheme is 19The Minnesota first, second, an unborn degrees, manslaughter of and third an unborn child in the murder of death to an resulting in operation vehicular degrees, first and second “criminal child in the (Minn. child,” felony. commission of an unlisted an unborn child in the unborn and death of addition, 3, 609.268, 609.2661-609.2665, 609.21, most subd. subd. Stat. Ann. §§ be a classic appears committed ways; example, in what can be in several these offenses conditions, specifically statute in Minnesota the response to local legislature’s case of a state shooting its child manslaughter cause the death of an unborn degree second makes it 609.2665, (2)). (id., subd. believing to be a deer” negligently “as a her § mother result offense is deemed in “feticide.” Thus Indiana one who “knowingly or intentionally” (Ind. terminates commits feticide Code Ann. pregnancy 35-42-1-6), punishable by imprisonment § for four with a fine years possible $10,000 (id., 35-50-2-6). not more than In Louisiana one who kills an § unborn child or in the intentionally commission of a listed commits felony first feticide degree punishable by imprisonment for not more than 15 years. (La. 14:32.6.) Rev. Stat. Ann. In South § Dakota one who kills “intentionally a human fetus by causing (S.D. injury its mother” commits a felony 22-17-6) Codified Laws punishable by imprisonment years § for 10 $10,000 (id., 22-6-1).20 fine of possible And in New one Hampshire § who or “Purposely knowingly causes to another injury resulting miscarriage 631:1, stillbirth” (N.H. commits first degree assault Rev. Stat. Ann. subd. § 1(c)) punishable by imprisonment for not more than 15 with a years possible $4,000 fine not (id., 651:2). to exceed §

Robert Keeler’s act of assaulting his wife estranged for the express purpose her terminating pregnancy knowingly intentionally killing her fully viable fetus would have been a crime all the jurisdictions discussed above that have abrogated the common law rule. It would certainly be a crime in California IBut today. cannot believe that amending section 187 to make that act a crime the Legislature also intended make California state in the only Union which it is a offense to cause the death capital of a nonviable and invisible fetus that the actor neither knew nor had reason this, to know existed. Yet again, where the lead opinion’s construction of the 1970 amendment takes us. I inexorably dissent from that construction.

VI I also dissent from the lead opinion’s I disposition this appeal. agree with the lead opinion that the instruction defining viability 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 trial, new and would direct the Court of Appeal to order the trial court to enter a judgment 1260, 1262; see, (§§ on that acquittal count. e.g., Carlson 37 Cal.App.3d On the facts of this case a retrial of the murder will count be a futile exercise and hence time, resources, total waste of court prosecutorial taxpayers’ money. retrial, such a holds, as the lead opinion correctly will be prosecution required to prove beyond a reasonable doubt that the Flores fetus was viable in the sense i.e., that its survival was not merely but possible probable, quoted 20The wording of the South Dakota opinion statute shows the lead is incorrect in asserting that “no state has criminalized (Lead nonconsensual of a ‘fetus’ . . . .” ante, opn., birth and the surviving it had better than 50 chance of percent premature birth). (28 correctly after But as the lead days opinion neonatal period observes, “in at defend- this case none of the medical who testified experts (Lead chance survival.” ant’s trial believed that the fetus had a ‘probable’ ante, such added.) And the failure to prosecution’s prove italics opn., case was want of The bulk of the through trying. prosecution’s not of medical on issue testimony experts devoted presenting three eminent physi- other called viability. Among experts prosecution and a neonatologist, perinatologist—who cians—a pediatric pathologist, fetal and not one could highly determining viability, were all experienced have survived birth premature that the Flores fetus would testify “probably” witnesses, moreover, mir- The and the neonatal period.21 unanimity literature, which they rored the uniform conclusions of the medical discussed detail on stand. and on the viability, thus took its best shot at prosecution proving In retrial the medical facts facts of this case was unable to do so. wholly reality, will will remain nonviable. Given this change: a nonviable fetus case it is will be able to make a better highly unlikely prosecution doubt. let alone that element a reasonable viability, prove beyond will by physician these circumstances no be served purpose compelling witnesses to their the survivors—Mrs. repeat lengthy testimony by putting the events reliving Flores and her the ordeal of once family—through again Rather, we end so litigation should exercise our discretion to this public. terms of impris- the defendant serve the and consecutive may multiple onment to which he was for the crimes he committed. actually sentenced testimony 21The two the defense equally qualified experienced physicians called was to the same effect.

Case Details

Case Name: People v. Davis

Court Name: California Supreme Court

Date Published: May 16, 1994

Citation: 872 P.2d 591

Docket Number: S033327

Court Abbreviation: Cal.