Metropolitan News-Enterprise


Friday, June 18, 2004


Page 1


Murder Conviction Upheld in Attack on Pregnant Woman


By a MetNews Staff Writer


An attack on a pregnant woman resulting in the premature birth and subsequent death of her child is murder of a human being, if accompanied by malice toward the fetus, the Third District Court of Appeal ruled yesterday.

Justice Richard M. Sims III rejected Markelle Neal Taylor’s argument that his conviction under Penal Code Sec. 187 for the second-degree murder of his son, Marcel Taylor, should be overturned. Taylor contended that since Marcel was unborn at the time Taylor attacked the child’s mother, he should have been prosecuted for murder of a fetus, not of a human being.

Sec. 187 criminalizes either as murder if committed with malice aforethought.

Testimony showed Taylor attacked his seven-months pregnant girlfriend, Garvon White, in 2001 after an argument. When White threatened to leave him and prevent him from seeing the child, Taylor exclaimed “I don’t want this baby” and punched her repeatedly in the stomach.

White went to a hospital, where Marcel was delivered prematurely by Caesarian section. He died about a month later from complications related to the premature birth.

 Sims said the flaw in Taylor’s argument was that under Sec. 187, the law “looks to the instant of death, not to when defendant did the act that ultimately caused death” in determining whether the murder is of a human being or of a fetus.

“Because Marcel was a human being when he died, defendant’s conviction for the murder of a human being was proper,” the justice declared.

At common law, he noted, if a child was born alive but subsequently died due to injuries inflicted before birth on the mother, the crime was murder or manslaughter, while if the child was born dead, there was no homicide. The amendment to Sec. 187 creating the offense of fetal murder changed the rule only as to fetuses born dead, Sims said.

He explained:

“We conclude that if (1) a defendant, acting with malice aforethought toward the fetus in a woman’s womb, assaults the woman; (2) in consequence, the fetus must be delivered prematurely; and (3) the fetus is born alive but later dies of causes to which the prematurity contributed substantially, the defendant has murdered a human being.”

Sims rejected Taylor’s contention that there was insufficient evidence to prove he caused Marcel’s death. A doctor testified that the complication from which the child died—necrotizing intercolitis, or the death of the developing bowel system—was almost never seen in full-term infants, he observed.

The justice said Sacramento Superior Court Judge Jack V. Sapunor did not err in failing to instruct jurors sua sponte on attempted murder of a fetus as a lesser included offense. Taylor argued the instruction was required, since if his attack on White was meant to kill a fetus, that intent was thwarted by Marcel’s birth alive.

“The crime of murder of a human being does not include as an element the murder of a fetus, because human beings are murdered all the time without any involvement of a fetus,” Sims reasoned. “Thus, applying the elements test, the attempted murder of a fetus is not a lesser included offense to murder of a human being.”

Taylor’s sentence for inflicting great bodily injury on White under circumstances involving domestic violence was properly enhanced under former Penal Code Sec. 12022.9(a), which provides for enhancement when a defendant inflicts an injury which “results in the termination of” a pregnancy, the justice said. The meaning of “termination” was not, as Taylor contended, restricted to miscarriage or abortion, he concluded.

“[T]he enhancement is properly imposed when the pregnancy ‘terminates’—i.e., ends—in any manner as a result of the defendant’s intentional felonious act,” Sims wrote. “If only a miscarriage or an abortion could constitute the ‘termination’ of a pregnancy under this statute, the Legislature could have so specified.”

The case is People v. Taylor, C042165.


Copyright 2004, Metropolitan News Company