People v. Davis

• Decision Date: 04 May 1993
• Docket Number: No. D016246,D016246
• Citation: 15 Cal.App.4th 690,19 Cal.Rptr.2d 96
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 15 Cal.App.4th 690, 20 Cal.App.4th 657 15 Cal.App.4th 690, 20 Cal.App.4th 657 The PEOPLE, Plaintiff and Respondent, v. Robert A. DAVIS, Defendant and Appellant.

Page 96

19 Cal.Rptr.2d 96

Previously published at 15 Cal.App.4th 690, 20 Cal.App.4th 657

15 Cal.App.4th 690, 20 Cal.App.4th 657

The PEOPLE, Plaintiff and Respondent, v. Robert A. DAVIS, Defendant and Appellant.

No. D016246.

Court of Appeal, Fourth District, Division 1, California.

May 4, 1993.

Review Granted Aug. 25, 1993.

Francis J. Bardsley, Public Defender, Jeffrey E. Thoma and Gary R. Nichols, Deputy Public Defenders, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., M. Howard Wayne, Supervising Deputy Atty. Gen., and Pamela K. Klahn, Deputy Atty. Gen., for plaintiff and respondent.

FROEHLICH, Associate Justice.

PENAL CODE SECTION 187¹, subdivision (a) provides that "[m]urder is the unlawful killing of a human being, or a fetus, ² with malice aforethought." In this opinion we determine that fetal viability is not an element of the crime of murder of a fetus. We recognize, however, that reasonably well-established precedent as it existed at the time of this trial precluded construction of section 187 to apply to a nonviable fetus. Accordingly, our determination that this preexisting precedent is erroneous constitutes a modification in an important element of the crime of murder of a fetus. Based upon our understanding of precedent developed to protect due process rights, we feel constrained to refrain from applying the new interpretation of the fetal murder elements to cases arising before the publication of this opinion. Finding that the court's instructions to the jury defining viability under the law as it then existed were prejudicially erroneous, we are therefore required to reverse the judgment of murder and remand for a new trial on that count.

FACTUAL AND PROCEDURAL BACKGROUND

On March 1, 1991, Maria Flores (Flores), who was six months pregnant, went to a check-cashing business to cash her welfare check. As Flores left the business with $378 in cash, she was accosted by Robert A. Davis (Davis), who pulled a gun from the waistband of his pants and demanded her money. When Flores refused, Davis grabbed for her purse, shot her in the chest at close range and then fled.

Flores underwent surgery to save her life. Small holes in her uterine wall were sutured to prevent bleeding, but no further obstetrical surgery was undertaken because of the immaturity of the fetus. The next day, the fetus was stillborn, the result of Flores's loss of blood, low blood pressure and state of shock. At trial, experts estimated the fetus's gestational age variously at 23 to 25 weeks.

The charges levied against Davis included an allegation he had murdered the fetus. (§ 187, subd. (a).) In relation to that charge, the trial court determined it would not instruct the jury under CALJIC No. 8.10 that "a viable human fetus is one who has attained such form and development of organs as to be normally capable of living outside of the uterus," and instead instructed that "[a] fetus is viable when it has achieved the capability for independent existence; that is, when it is possible for it to survive the trauma of birth, although with artificial medical aid."

A jury convicted Davis of murder of a fetus during the course of a robbery (§ 187, subd. (a); § 190.2, subd. (a)(17)); assault with a firearm (§ 245, subd. (a)(2)); and robbery (§ 211). It found that in the commission of each offense he had personally used a firearm. (§ 12022.5, subd. (a).) The court sentenced him to life without the possibility of parole plus five years.

On appeal Davis contends the trial court prejudicially erred in its instruction to the jury on fetal viability. The Attorney General argues that no instruction was necessary because section 187, subdivision (a) does not require that the fetus be viable. Our review of the wording of section 187, its legislative history, the treatment of the issue in other jurisdictions, and scholarly comment on the subject convinces us that the Attorney General's position is sound, and that fetal viability is not an element of homicide under section 187, subdivision (a).

DISCUSSION

I. HISTORICAL BACKGROUND

A. Legislative History

In 1970 section 187 provided: "Murder is the unlawful killing of a human being, with malice aforethought." (Keeler v. Superior Court (1970) 2 Cal.3d 619, 624, 87 Cal.Rptr. 481, 470 P.2d 617; Historical Note, 47 West's Ann.Pen.Code (1988 ed.) § 187, p. 339.) In that year, faced with a defendant who had killed the fetus his estranged wife was carrying by hitting and kneeing her in the abdomen, the California Supreme Court held the defendant's acts against the fetus were not murder under the common law or under the then existing statute. (Keeler v. Superior Court, supra, 2 Cal.3d at pp. 624-631, 87 Cal.Rptr. 481, 470 P.2d 617.) The court explained that in 1850 when the Legislature enacted the murder statute it intended "human being" to have the common law meaning of a person who had been born alive, and did not intend feticide to be an offense under California law. ³ (Id. at pp. 625-628, 87 Cal.Rptr. 481, 470 P.2d 617.) The court also observed that when the new Penal Code was adopted in 1872 there was no indication of any different intent. (Id. at p. 628, 87 Cal.Rptr. 481, 470 P.2d 617.)

The Legislature reacted swiftly to the Keeler decision. Shortly after it was filed, Craig Biddle, the California Assembly's Majority Floor Leader, took over sponsorship of Assembly Bill No. 816 and offered amendments to sections 187 (murder) and 192 (manslaughter) to include a provision that a fetus advanced to or beyond the 20th week of gestation is a human being within the meaning of the statutes. (Assem.Bill No. 816, 1970 Regular Session, as amended June 24, 1970; Comment (1971) 2 Pacific L.J. 170, 172 (hereinafter Comment).) On July 10, 1970, the bill was further amended to include exceptions which eliminated potential conflicts with the abortion statutes. (Assem.Bill No. 816, 1970 Regular Session, as amended July 10, 1970; Comment at p. 172.) On July 17, 1970, the bill was amended in the assembly. In this version the requirement that the fetus be at least 20 weeks in gestation was eliminated. (Assem.Bill No. 816, 1970 Regular Session, as amended July 17, 1970; Comment at p. 173.) Although the bill met with opposition on the assembly floor, it was passed and sent to the senate, where it was widely debated. (Comment at pp. 173-174.)

Amendments suggested in senate debate were incorporated into the bill, which was passed by both houses of the Legislature and signed by the Governor on September 17, 1970. (Comment at p. 174.) The July 17, 1970 version of the bill had included a fetus in the definition of a human being. In its final form, however, and as presently contained in the statute, murder of a fetus is stated as a separate and distinct crime, no attempt being made to classify a fetus as a human being. The statute also provides that section 187 does not apply to acts which comply with statutes regulating lawful abortion. ⁴

As amended, section 187 reads as follows:

"(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

"(b) This section shall not apply to any person who commits an act which results in the death of a fetus if any of the following apply:

"(1) The act complied with the Therapeutic Abortion Act, Chapter 11 (commencing with Section 25950) of Division 20 of the Health and Safety Code.

"(2) The act was committed by a holder of a physician's and surgeon's certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.

"(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.

"(c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law."

B. Case Law Construing Section 187, Subdivision (a)

Following the amendment of section 187, the word "fetus," within the meaning of the statute, was construed in an appellate decision to refer only to a viable fetus. In People v. Smith (1976) 59 Cal.App.3d 751, 129 Cal.Rptr. 498, the defendant had choked, pushed and kicked his wife, who was 12 to 15 weeks pregnant, saying he did not want the baby to live. She subsequently miscarried. It was stipulated at trial that the fetus was not viable at the time of the miscarriage. (Id. at pp. 753-754, 129 Cal.Rptr. 498.)

The People appealed dismissal of the count that the defendant had murdered the fetus. (People v. Smith, supra, 59 Cal.App.3d at pp. 752-753, 129 Cal.Rptr. 498.) The second district affirmed, construing the statute to apply only to a viable fetus. (Id. at p. 759, 129 Cal.Rptr. 498.) The court reasoned: "Logically, one cannot destroy independent human life prior to the time it has come into existence." (Id. at p. 756, 129 Cal.Rptr. 498.) The court noted that advances in medical science have increased the capability of independent human life prior to birth, and thus there is justification for expanding legal protection beyond children born alive to fetuses (id. at pp. 756- 757, 129 Cal.Rptr. 498), but "[i]f destruction of a nonviable fetus were susceptible to classification as the taking of human life and therefore murder, then the mother no more than the father would have the right to take human life." (Id. at p. 757, 129 Cal.Rptr. 498.) Citing Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, the court noted the mother's absolute right to destroy the fetus during the first trimester of gestation and near absolute right to do so during the second trimester, observing that until viability the state has no interest in the fetus insofar as affording it protection against the wishes of the mother. The Smith court opined that "[i]mplicit in Wade is the...