2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617
In September 1968 petitioner James Keeler and his wife Teresa obtained an interlocutory decree of divorce after sixteen years of marriage.1 Petitioner received custody of their two daughters aged twelve and thirteen.2 Unknown to petitioner Mrs. Keeler was then pregnant by Ernest Vogt whom she had met earlier that summer and she began living with him in Stockton while concealing the pregnancy from petitioner.3
On February 23, 1969, Mrs. Keeler was driving on a narrow mountain road in Amador County after delivering the girls to their home when she encountered petitioner driving in the opposite direction.4 Petitioner blocked the road with his car and she pulled over to the side.5 He walked to her vehicle and began speaking to her.6 He seemed calm and she rolled down her window to hear him.7 He said he heard she was pregnant and that she had better stay away from the girls and from there.8 She did not reply and he opened the car door.9 Petitioner then looked at her abdomen and became extremely upset.10 He said she sure was pregnant and that he was going to stomp it out of her.11 He pushed her against the car, shoved his knee into her abdomen, and struck her in the face with several blows.12 She fainted and when she regained consciousness petitioner had departed.13
Mrs. Keeler drove back to Stockton and the police and medical assistance were summoned.14 She had suffered substantial facial injuries as well as extensive bruising of the abdominal wall.15 A Caesarian section was performed and the fetus was examined in utero.16 Its head was found to be severely fractured and it was delivered stillborn.17 The pathologist gave as his opinion that the cause of death was skull fracture with consequent cerebral hemorrhaging. Death would have been immediate. The injury could have been the result of force applied to the mother's abdomen.18 There was no air in the fetus' lungs and the umbilical cord was intact.19 Upon delivery the fetus weighed five pounds and was 18 inches in length.20 Both Mrs. Keeler and her obstetrician testified that fetal movements had been observed prior to February 23, 1969.21 The expert testimony on the point concluded with reasonable medical certainty that the fetus had developed to the stage of viability. In the event of premature birth on the date in question it would have had a 75 percent to 96 percent chance of survival.22
An information was filed charging petitioner in count I with committing the crime of murder in that he did unlawfully kill a human being to wit Baby Girl Vogt with malice aforethought.23 In count II petitioner was charged with wilful infliction of traumatic injury upon his wife and in count III with assault on Mrs. Keeler by means of force likely to produce great bodily injury.24 His motion to set aside the information for lack of probable cause was denied and he now seeks a writ of prohibition.25 Pending disposition of the matter petitioner is free on bail.26 The Supreme Court of California issued an alternative writ of mandate to review the matter.27
Whether an unborn but viable fetus is a 'human being' within the meaning of Penal Code section 187 defining murder?28
Penal Code section 187 defines murder as the unlawful killing of a human being with malice aforethought. The Legislature in 1850 and 1872 intended the term human being to retain its settled common law meaning requiring live birth before a child becomes the subject of homicide.29
No. The established facts show that on February 23, 1969, petitioner blocked the road, confirmed the pregnancy, and struck his former wife in the abdomen causing the stillbirth of the fetus.30 The fetus weighed five pounds and was 18 inches in length when delivered by Caesarian section after the attack.31 There was no air in the fetus' lungs and the umbilical cord was intact. Expert testimony established with reasonable medical certainty that the fetus was between thirty-four and thirty-six weeks developed and viable with a seventy-five to ninety-six percent chance of survival if born on that date.32 Yet the common law rule adopted by the California Legislature requires that the child be born alive to qualify as a human being under the homicide statute.33
Because the fetus was not born alive the conduct does not fall within the statutory definition of murder.34 The superior court denied the motion to set aside the information charging murder of the fetus but the Supreme Court reviewed the matter on petition for writ of prohibition after issuing an alternative writ.35 The legislative history confirms that no feticide statute was enacted in 1850 or 1872 and the code commissioners expressly noted that a child in the womb is not a human being within the meaning of the murder statute.36 Judicial enlargement to cover viable fetuses would exceed the legislative intent expressed in the plain language and history of section 187.37
An unborn but viable fetus is not a human being within the meaning of Penal Code section 187.38
Related opinions on this issue
Joined by Sullivan, J.
Justice Burke dissented on the ground that the term human being should be interpreted according to the fair import of its terms under Penal Code section 4 to include a viable fetus capable of independent survival.39 He argued that the common law quickening concept and modern medical evidence of viability supported treating the fully developed fetus as a human being.40 The Chavez decision had already moved away from a strict born-alive requirement.41
The Legislature could not have intended the malicious killing of such a child to be punished only as the lesser offense of abortion.42 Burke concluded that the writ should be denied so the prosecution for murder could proceed.43
Whether construing Penal Code section 187 to include the killing of an unborn viable fetus and applying that construction to petitioner's conduct would violate due process of law?44
The due process clause of the Fourteenth Amendment prohibits retroactive application of an unforeseeable judicial enlargement of a criminal statute. Such an expansion denies the fair warning required before conduct may be punished as a crime.45
Yes. The established facts establish that petitioner's conduct took place on February 23, 1969, at which time California decisions required proof that the child had been born alive before a homicide conviction could be sustained.46 No reported California case had held that the killing of an unborn viable fetus constituted murder under section 187 and petitioner could reasonably have believed his actions violated only the abortion statute.47 A new construction extending the statute to viable fetuses would therefore constitute an unforeseeable judicial enlargement applied retroactively to petitioner's past conduct.48
The Supreme Court held that such an enlargement would operate precisely like an ex post facto law and would violate due process by punishing conduct that was not clearly criminal under the statute as it existed on the date of the offense.49 The alternative writ was discharged and a peremptory writ of prohibition issued to bar further proceedings on the murder count.50
Construing Penal Code section 187 to include the killing of an unborn viable fetus and applying that construction to petitioner's conduct would violate due process of law.51
Related opinions on this issue
Joined by Sullivan, J.
Justice Burke dissented on the due process issue as well, contending that the construction was foreseeable from the strong dicta in Chavez recognizing viability as the point at which a child becomes a human being for homicide purposes.52 He maintained that defendant had adequate notice because the facts of a thirty-five-week viable fetus made the application of the homicide statute neither unexpected nor indefensible by reference to existing law.53 Due process does not require the defendant to have consulted seventeenth-century common law treatises before committing the act.54