People v. Davis

• Decision Date: 16 May 1994
• Docket Number: No. S033327,S033327
• Citation: 30 Cal.Rptr.2d 50,7 Cal.4th 797,872 P.2d 591
• Court: California Supreme Court
• Parties: , 872 P.2d 591, 62 USLW 2744 The PEOPLE, Plaintiff and Respondent, v. Robert A. DAVIS, Defendant and Appellant.

Page 50

30 Cal.Rptr.2d 50

7 Cal.4th 797, 872 P.2d 591, 62 USLW 2744

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

No. S033327.

Supreme Court of California,

In Bank.

May 16, 1994.

[7 Cal.4th 800] [872 P.2d 592] Francis J. Bardsley, Public Defender, under appointment by the Supreme Court, 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, Asst. Atty. Gen., M. Howard Wayne, Janelle B. Davis and Pamela K. Klahn, Deputy Attys. Gen., for plaintiff and respondent.

John J. Meehan, District Atty., Alameda and William M. Baldwin, Asst. Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

[872 P.2d 593] LUCAS, Chief Justice.

Penal Code section 187, subdivision (a), provides that "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (All further statutory references are to the Penal Code unless otherwise indicated.) In this case, we consider and reject the argument that viability of a fetus is an element of fetal murder under the statute. As will appear, however, we also conclude that this holding should not apply to defendant herein. Accordingly, we will affirm the judgment of the Court of Appeal.

FACTS

On March 1, 1991, Maria Flores, who was between 23 and 25 weeks pregnant, and her 20-month-old son, Hector, went to a check-cashing store to cash her welfare check. As Flores left the store, defendant pulled a gun from the waistband of his pants and demanded the money ($378) in her purse. When she refused to hand over the purse, defendant shot her in the chest. Flores dropped Hector as she fell to the floor and defendant fled the scene.

Flores underwent surgery to save her life. Although doctors sutured small holes in the uterine wall to prevent further bleeding, no further obstetrical surgery was undertaken because of the immaturity of the fetus. The next day, the fetus was stillborn as a direct result of its mother's blood loss, low blood pressure and state of shock. Defendant was soon apprehended and charged with assaulting and robbing Flores, as well as murdering her fetus. The [7 Cal.4th 801] prosecution charged a special circumstance of robbery-murder. (§ 190.2, subd. (a).)

At trial, the prosecution's medical experts testified the fetus's statistical chances of survival outside the womb were between 7 and 47 percent. The defense medical expert testified it was "possible for the fetus to have survived, but its chances were only 2 or 3 percent." None of the medical experts testified that survival of the fetus was "probable."

Although section 187, subdivision (a), does not expressly require a fetus be medically viable before the statute's provisions can be applied to a criminal defendant, the trial court followed several Court of Appeal decisions and instructed the jury that it must find the fetus was viable before it could find defendant guilty of murder under the statute. The trial court did not, however, give the standard viability instruction, CALJIC No. 8.10, which states that: "A viable human fetus is one who has attained such form and development of organs as to be normally capable of living outside of the uterus." The jury, however, was given an instruction that allowed it to convict defendant of murder if it found the fetus had a possibility of survival: "A fetus is viable when it has achieved the capability for independent existence; that is, when it is possible for it to survive the trauma of birth, although with artificial medical aid." (Italics added.)

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

On appeal, defendant contended that the trial court prejudicially erred by not instructing the jury pursuant to CALJIC No. 8.10. He relied on United States Supreme Court decisions that have defined viability of a fetus in terms of "probabilities, not possibilities", when limiting a woman's absolute right to an abortion. (See Roe v. Wade (1973) 410 U.S. 113, 163, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 [defining viability as that point in fetal development when a fetus, if born, would be capable of living normally outside the womb]; Planned Parenthood v. Casey (1992) 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 [reaffirming Roe's viability definition].) By analogy to the abortion cases, defendant asserted that a fetus is not viable under section 187, subdivision (a), unless "there is a reasonable likelihood of [its] sustained survival outside the womb, with or without artificial support." (Colautti v. Franklin (1979) 439 U.S.

[872 P.2d 594] 379,388,99S.Ct.[7 Cal.4th 802] 675,682,58L.Ed.2d596.) Thus, defendant claimed, rather than defining viability as a "reasonable possibility of survival," the trial court should have instructed the jury under the higher "probability" threshold described in CALJIC No. 8.10

The People argued that no viability instruction was necessary because prosecution under section 187, subdivision (a), does not require that the fetus be viable. After reviewing the wording of section 187, subdivision (a), its legislative history, the treatment of the issue in other jurisdictions, and scholarly comment on the subject, the Court of Appeal agreed with the People that contrary to prior California decisions, fetal viability is not a required element of murder under the statute. Nonetheless, the court reversed defendant's murder conviction and set aside the special circumstance finding, on the ground that application to defendant of its unprecedented interpretation of section 187, subdivision (a), would violate due process principles.

As explained below, we agree with the People and the Court of Appeal that viability is not an element of fetal murder under section 187, subdivision (a), and conclude therefore that the statute does not require an instruction on viability as a prerequisite to a murder conviction. In addition, because every prior decision that had addressed the viability issue had determined that viability of the fetus was prerequisite to a murder conviction under section 187, subdivision (a), we also agree with the Court of Appeal that application of our construction of the statute to defendant would violate due process and ex post facto principles. (People v. King (1993) 5 Cal.4th 59, 80, 19 Cal.Rptr.2d 233, 851 P.2d 27 [unforeseeable enlargement of a criminal statute operates in manner of ex post facto law].) Accordingly, we address the instructional issue raised by defendant and agree with the Court of Appeal that the trial court prejudicially erred when it instructed the jury contrary to then-existing law, pursuant to a modified version of CALJIC No. 8.10. Thus, we conclude we should affirm the Court of Appeal judgment in its entirety (affirming the assault and robbery counts and reversing the judgment of murder).

DISCUSSION

I. Historical development

In 1970, section 187, subdivision (a), provided: "Murder is the unlawful killing of a human being, with malice aforethought." In Keeler v. Superior Court (1970) 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617, a majority of the court held that a man who had killed a fetus carried by his estranged wife could not be prosecuted for murder because the [7 Cal.4th 803] Legislature (consistent with the common law view) probably intended the phrase "human being" to mean a person who had been born alive.

The Legislature reacted to the Keeler decision by amending the murder statute, section 187, subdivision (a), to include within its proscription the killing of a fetus. (Stats.1970, ch. 1311, § 1, p. 2440.) The amended statute reads: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187, subd. (a).) The amended statute specifically provides that it does not apply to abortions complying with the Therapeutic Abortion Act, performed by a doctor when the death of the mother was substantially certain in the absence of an abortion, or whenever the mother solicited, aided, and otherwise chose to abort the fetus. (§ 187, subd. (b).)

The legislative history of the amendment suggests the term "fetus" was deliberately left undefined after the Legislature debated whether to limit the scope of statutory application to a viable fetus. (Comment, Is the Intentional Killing of an Unborn Child Homicide? (1970) 2 Pacific L.J. 170, 174.) The Legislature was clearly aware that it could have limited the term "fetus" to "viable fetus," for it specifically rejected a proposed amendment that required the fetus be at least 20 weeks in gestation before the statute would apply. (Assem. Bill No. 816 (1970 Reg.Sess.).)

In 1973, the United States Supreme Court issued a decision that balanced a mother's constitutional privacy interest in her body against a state's interest in protecting fetal life, and determined that in the context of a mother's abortion decision, the state had no legitimate interest in protecting a fetus until

[872 P.2d 595] it reached the point of viability, or when it reached the "capability of meaningful life outside the mother's womb." (Roe v. Wade, supra, 410 U.S. at p. 163, 93 S.Ct. at p. 732.) The court explained that "[v]iability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." (Id. at p. 160, 93 S.Ct. at p. 730.) At the point of viability, the court determined, the state may restrict abortion. (Id. at p. 163, 93 S.Ct. at p. 732.)

Thereafter, in ...