People v. Smith

• Decision Date: 30 June 1976
• Citation: 59 Cal.App.3d 751,129 Cal.Rptr. 498
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Karl Andrew SMITH, Defendant and Respondent. Cir. 27772.

Page 498

129 Cal.Rptr. 498

59 Cal.App.3d 751

The PEOPLE of the State of California, Plaintiff and Appellant, v. Karl Andrew SMITH, Defendant and Respondent.

Cir. 27772.

Court of Appeal, Second District, Division 2, California.

June 30, 1976.

As Modified July 21, 1976.

Rehearing Denied July 28, 1976.

John K. Van De Kamp, Dist. Atty., Harry B. Sondheim, Head, Appellate Div., Donald J. Kaplan, George A. Oakes, Eugene D. Tavris, Deputys Dist. Attys., for plaintiff and appellant.

Richard S. Buckley, Public Defender, John M. Moore, Chief Deputy Public Defender, Harold E. Shabo, Michael P. Judge, Frederick A. Gould, Jr., Michael O. Clark, Leighton A. Nugent, Deputys Public Defender, for defendant and respondent.

FLEMING, Associate Justice.

The People appeal the dismissal in an amended information of a count which charged that defendant Karl Andrew Smith 'did . . . with malice aforethought murder a human fetus.' (Pen.Code, § 187.) ¹ Defendant was charged in three other counts with assault with force likely to produce great bodily injury (Pen.Code § 245, subd. (a)); wife-beating (Pen.Code, § 273d); and criminal abortion (Pen.Code, § 274). He was tried and convicted on these other counts and sentenced to prison for the forceful assault.

I

At the preliminary hearing, Jolene Smith testified she lived with defendant, her husband of five months, in an Inglewood apartment. In April 1975 she believed she was pregnant. After an examination at a clinic on 24 April 1975, Jolene told defendant she was pregnant. He seemed happy to hear it, and Jolene began saving money for the baby.

On the morning of May 7 Jolene went to her doctor for treatment of a back injury and for advice about her pregnancy. Because defendant did not want to get up to take her to the hospital, she was taken by her father. Jolene returned to the apartment in the late afternoon, and about 7 p.m. defendant telephoned to say he was coming home and she better have good news. Jolene did not know what he meant. About fifteen minutes later defendant fumbled with his door key, entered the apartment, and slammed the door. He had been drinking.

Defendant accused Jolene of lying to him, of getting an abortion, and of performing lewd interracial acts. He grabbed her and threw her around the apartment, he chocked and pushed her with his fists, he said he would kill Jolene's parents, and he said the baby had no right to live with her as its mother. While Jolene knelt on the floor, defendant kicked her in the stomach and back, saying he did not want the baby to live and repeating 'Bleed, baby, bleed.'

The beating continued for more than an hour, while Jolene tried unsuccessfully to escape. Once, when defendant answered the telephone, Jolene ran to the balcony and called for help, but defendant pulled her back into the apartment. When police officers knocked at the apartment door, defendant told Jolene to tell the officers they were making love. Instead, Jolene called for help, and the officers broke through the door. They dragged defendant, beserk and arms swinging at all angles, away from Jolene. It was stipulated that defendant later told one of the officers that Jolene deserved to be beaten for having had interracial intercourse.

Following the beating, the lower part of Jolene's stomach began to hurt and continued to hurt. On May 24, some two-and-one half weeks after the beating, Jolene experienced a heavy vaginal flow of blood and clots, and she was treated at the hospital emergency room at UCLA Medical Center for severe pain, bleeding, and contractions. She went home but the pain continued, and next morning bleeding and contractions resumed. On her return to the hospital and while being treated, she felt something come out of her, which she described as an incomplete abortion.

Judith Safford, a medical student employed in the surgical pathology department of the hospital, testified her department received no specimen of a fetus but it did receive a specimen of uterine contents (blood, mucus, and endometrium) which was a product of conception and which indicated that Jolene was 12 to 15 weeks pregnant at the time of the miscarriage. It was stipulated that the product of conception was non-viable.

The superior court found reasonable cause to believe defendant procured an abortion by violent means and with malice. However, the court concluded that only a viable fetus could become an object of murder, and dismissed the murder charge.

II

1. The evidence sufficiently established Jolene's pregnancy and defendant's conduct as the cause of the abortion. Jolene, an adult woman who had experienced prior pregnancy and miscarriage, was competent to testify about her pregnancy and abortion. (See Frederick v. Federal Life Ins. Co., 13 Cal.App.2d 585, 589--90, 57 P.2d 235.) Expert testimony was not required to support the logical inference, drawn from common experience, that the beating given to Jolene brought about the abortion. (Greene v. Anders (Tex.Civ.App.), 473 S.W.2d 622, 625--26.)

2. The People contend the court erred in dismissing the murder charge, in that an embryo becomes a fetus no later than the 12th week of pregnancy and section 187 applies to the violent and malicious destruction of all fetuses older than 12 weeks.

Respondent argues that the murder statute must be reasonably and constitutionally limited to the destruction of a fetus that is viable, i.e., having the potentiality for survival outside the body of the parent, and that destruction of a non-viable fetus is not murder but only a violent and unconsented abortion. The difference in the position of the parties is relatively narrow, in that the People, in effect, admit that a fetus does not come into existence until about 12 weeks after conception, while respondent, who relies on the concept of viability, concedes that viability can occur as early as the 24th week of pregnancy. The issue presented is whether the murder statute applies to the destruction of a product of conception subsequent to the time its organs and tissues have become differentiated but before it has reached the potentiality for survival outside the body of its parent. Put another way, the issue is whether violent and unconsented abortion of a non-viable fetus is murder.

The history of abortion as murder in California is quickly told. At common law, abortion did not amount to murder, even when violent, malicious, and performed on a woman quick with child. Hale, Pleas of the Crown (1678) 53; I Blackstone, Commentaries (1765) 129--30. California followed the common law rule, and live birth was required to support a charge of murder, although killing in the course of the birth itself could amount to murder. (People v. Chavez, 77 Cal.App.2d 621, 176 P.2d 92.) In 1970 the rule requiring birth as a prerequisite to murder was applied in a case of extreme brutality involving the destruction of a fully viable child carried by a woman in an advanced state of pregnancy (35 weeks). (Keeler v. Superior Court, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617). Keeler held that an unborn but Viable fetus was not a human being within the meaning of section 187, which then read: 'Murder is the unlawful killing of a human being, with malice aforethought.' The legislative reaction to the case brought about the amendment of section 187 into its present form. (Stat. 1970, ch. 1311, p. 2440.) (See People v. Carlson, 37 Cal.App.3d 349, 355, 112 Cal.Rptr. 321; MacCartee, 'Infanticide in California,' 7 Cal.West.L.Rev. 272, 282.) The legislative history of the 1970 amendment, A.B. 816, suggests the term 'fetus' was left undefined and open to construction in order to ensure passage of the amendment in the face of divided legislative views about its meaning and intended purpose. (See Webb, 'Is the Intentional Killing of an Unborn Child Homicide?' 2 Pacific L.J. 170, 172--175.)

The People contend the amendment to section 187 makes the destruction of any product of conception subsequent to the time its organs have become differentiated a murder. The People's argument possesses a structural weakness in that section 187, as amended, does not define fetus nor is it consistent with other parts of the Penal Code in which it is located. Thus, the statute defining Murder is part of the chapter on homicide, and Homicide comprises the destruction of human life. In turn the homicide chapter is part of Title 8 of the Penal Code, entitled, Of Crimes Against the Person. Legally, a fetus is not a person. (Roe v. Wade, 410 U.S. 113, 157--58, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).) A further example of this inconsistency is found in the definition of the express malice required for murder as 'a deliberate intention unlawfully to take away the life of a fellow creature.' (Pen.Code, § 188.) Yet, the respondent's argument, as well, contains its own structural weakness in that if the legislature had wished to limit section 187 to Viable fetuses it could have easily said so in the text of its amendment. In view of the gaps and inconsistencies on both sides of the issue, we rely on general legal principles interpreted in the light of the factual situation with which the statute purportedly deals.

Legally and factually, a non-viable fetus does not possess the capability for independent existence and has not attained the status of independent human life. Logically, one cannot destroy independent human life prior to the time it has come into existence. Until the capability for independent human life is attained, there is only the expectancy and potentiality for human life. (Roe v. Wade, supra, 410 u.S. 113, 162, 93 S.Ct. 705, 35 L.Ed.2d 147.) This was the prevailing view at common law, which required birth to recognize human life, and in the then state of the medical art the legal requirement for birth before recognition of human life harmonized with practical realities. With the advance in the medical art in recent years the capability for independent human life prior to...