Metropolitan News-Enterprise


Thursday, February 20, 2003


Page 3


California High Court to Decide Whether Fetal Murder Conviction Requires Knowledge of Mother’s Pregnancy


By a MetNews Staff Writer


The California Supreme Court yesterday agreed to decide whether a defendant may be convicted of fetal murder where the defendant does not know the expectant mother was pregnant and the pregnancy was not apparent.

The justices yesterday unanimously approved prosecutors’ request for review the Nov. 27 ruling in People v. Taylor, 103 Cal.App.4th 1275.

The First District Court of Appeal, 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 from 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 the murder weapon from some hedges near the apartment.

At trial, 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.

Prosecutors argued 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.”

In other action at yesterday’s conference, the justices unanimously agreed to review an award of more than $750,000 under the “private attorney general” statute to two law firms that sued DaimerChrysler Corporation for misrepresenting the towing capacity of its 1999 Dakota R/T truck.

Div. One of this district’s Court of Appeal, in an unpublished opinion, upheld Los Angeles Superior Court Commissioner Bruce Mitchell’s fee order, rejecting the automaker’s claims that the litigation over its “marketing error” was unnecessary and that the fees were excessive.

The court said the litigation was a “catalyst” in getting the company to change the ads, and held the U.S. Supreme Court’s rejection of the catalyst theory as justifying fee awards under federal law to be unpersuasive in interpreting the California statute.


Copyright 2003, Metropolitan News Company