Monday, December 2, 2002
Fetal Murder Conviction Requires Knowledge of Pregnancy—C.A.
By KENNETH OFGANG, Staff Writer/Appellate Courts
A defendant cannot be convicted of fetal murder if he didn’t know the expectant mother was pregnant and the pregnancy was not apparent, the First District Court of Appeal has ruled.
In a decision Wednesday, Div. Four sustained Harold Wayne Taylor’s conviction of second degree murder in the death of ex-girlfriend Patty Fansler, but reversed a conviction for killing Fansler’s 11-to-13-week old fetus.
Fansler was found in her apartment in the Mendocino County community of Calpella, bleeding from a gunshot wound, on March 9, 1999; witnesses said they saw Taylor running for the scene. Fansler was pronounced “neurologically dead” on arrival at Ukiah Valley Medical Center, and an autopsy revealed her pregnancy.
Taylor was arrested the next day, after a high school classmate told police that Taylor had admitted the shooting and asked him to retrieve Taylor’s gun from some hedges near the apartment. Two months later, Taylor called one of the investigators on the case, who testified the defendant told him he wanted the death penalty.
At trial, however, Taylor claimed that he only went to Fansler’s house to retrieve money she had taken from him. He said he took a gun with him because he intended to frighten her, if necessary, into returning the money.
The gun, he claimed, discharged accidentally, following which the two tussled and the gun, he testified, went off again. He denied having told anyone that he killed Fansler.
The defense also presented evidence that Taylor was a Vietnam veteran with posttraumatic stress disorder. A prosecution expert, testifying on rebuttal, said the Fansler killing was carefully planned, pointing away from PTSD as an explanation for the defendant’s conduct.
Justice Timothy Reardon, writing for the appellate panel, agreed with the defense that there was insufficient evidence of implied malice to support the fetal murder conviction.
The jurist noted that until 1970, California followed the common law rule that the killing of a fetus is not a crime. The passage of the feticide law, Reardon commented, was apparently in reaction to Keeler v. Superior Court (1970) 2 Cal.3d 619.
Keeler held that a defendant who viciously attacked his ex-wife upon learning she was pregnant by another man, causing her to deliver a stillborn fetus, could not be convicted of murder because he had not killed a “human being.”
The statute, however is narrow, Reardon said. After considering a bill that would encompass both fetal murder and fetal manslaughter, the justice recounted, lawmakers decided to proscribe only the former.
“When the charge is second degree murder of a fetus, malice aforethought must be proved separately as to the fetus,” Reardon elaborated. “Malice may be express or implied,” he added, as set forth in the standard jury instruction on implied malice, CALJIC No. 8.11.
Implied malice is subjective, Reardon added. Thus, unless the defendant knew of, or should have known of, the pregnancy, the justice said, there can be no conviction of fetal murder.
Reardon rejected the contention that Taylor could have foreseen that Fansler was pregnant because he knew she was “of child-bearing years—fertile—dating other men, and...sexually active.” That theory of fetal murder, the jurist wrote, “leans more toward strict liability than implied malice.”
The panel did, however, uphold the murder conviction, rejecting the defense argument that the trial judge improperly admitted evidence that Fansler had, shortly before her death, complained to the police that Taylor had tailgated her.
The evidence, Reardon wrote in an unpublished portion of his opinion, was admissible under Evidence Code Secs. 1109 and 1370.
Sec. 1109 permits evidence of a propensity to commit domestic violence to be admitted against a defendant accused of that type of crime. Sec. 1370, enacted in 1996 in response to the O.J. Simpson case, creates a hearsay exception allowing admission of a statement that “purports to narrate, describe or explain the infliction or threat of physical injury upon the declarant.”
For Sec. 1370 to apply, the declarant must be unavailable, the statement must have been made at or near the time of the subject act or threat and in no event more than five years prior to the filing of the case in which it is offered, and the statement must be trustworthy and must have been made in writing, been electronically recorded, or have been made to a law enforcement officer.
Trustworthiness, the statute provides, must be judged according to the declarant’s motive, the extent of any self-interest the declarant may have had, and the existence or lack of corroborating evidence.
Fansler’s statements to the police were reliable, Reardon said, given the officers’ observations of her obvious state of fear.
The case is People v. Taylor, 02 S.O.S. 5799.
Copyright 2002, Metropolitan News Company