Metropolitan News-Enterprise


Thursday, September 11, 2008


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Court Rejects Scienter Argument in Death of Fetus

Rules Knowledge of Unborn Child’s Existence Not a Prerequisite to Guilty Verdict


By STEVEN M. ELLIS, Staff Writer


The Third District Court of Appeal yesterday rejected a man’s argument that he was not guilty of murder for killing his unborn child because he had strangled—rather than shooting—the woman carrying the fetus.

Upholding Timon Joel Pool’s second degree murder conviction for the unborn fetus’ death because Pool acted with knowledge of the danger to and conscious disregard for life in general when he strangled his girlfriend, the court held that the trial court did not err when it instructed the jury that Pool’s knowledge of the fetus’s existence was not a prerequisite to finding him guilty.

Pool’s girlfriend, Lillian Best, was in the early stages of pregnancy when Pool strangled her to death in July 2006 after a struggle. The pregnancy was not obvious externally, and was only discovered by a forensic pathologist during an autopsy.

Discovered During Autopsy

The forensic pathologist, as well as a coroner’s office pathologist who reviewed the forensic pathologist’s report, both estimated the gestational age of the fetus to be about 12 weeks, and concluded it died as a result of Best’s death.

Pool was charged with two counts of murder with malice aforethought in the deaths, but claimed not to have learned of Best’s pregnancy until he received documents charging him with two murders while in a holding cell awaiting arraignment. He testified he was “[a]bsolutely devastated” to learn he had killed his unborn child, but a jury found him guilty of first degree murder in Best’s death, and second degree murder in the fetus’s death.

On appeal, Pool argued that San Joaquin Superior Court Judge Cinda Fox erred when she  gave a special instruction requested by the prosecutor that the jury did not need to conclude that Pool knew about the fetus in order to find him guilty of its murder.

Instructional Error Alleged

He also contended that Fox compounded the error when she opted not to tell the jury that the death must have been “the direct, natural, and probable consequence of [Pool’s] act,” instead instructing that a defendant acts with implied malice towards those he ends up killing when the defendant “commits an act, the natural consequences of which are dangerous to human life, with a conscious disregard for life in general.”

Asserting that the California Supreme Court’s decision in People v. Taylor (2004) 32 Cal.4th 863 was the “unquestionable basis for the prosecutor’s instruction,” Pool argued the case should be narrowly construed because the act of firing a firearm was potentially lethal to anyone who gets in the way, but the act of strangling was not.

In Taylor, the high court upheld—in language similar to Fox’s special instruction—the fetal murder conviction of a man who did not know his girlfriend was pregnant when he shot her.

No Basis to Distinguish

However, Justice Ronald B. Robie opined that there was “no basis in law or reason for distinguishing between murdering a pregnant woman by gunshot or by strangulation.”

Adding that the California Supreme Court “could hardly have been more clear,” he quoted the high court’s opinion in Taylor to explain:

“In battering and shooting [the victim], defendant acted with knowledge of the danger to and conscious disregard for life in general. That is all that is required for implied malice murder. He did not need to be specifically aware how many potential victims his conscious disregard for life endangered.”

In an unpublished portion of the opinion, Robie similarly rejected Pool’s contentions that Fox had erred in declining to include the “natural and probable consequences” paragraph in the jury instructions, and by failing to instruct the jury on involuntary manslaughter. Pointing out that the unlawful killing of a “human being or a fetus” with malice aforethought is murder, he noted that only the unlawful killing of a “human being” can constitute manslaughter.

Justices Rod Davis and Fred K. Morrison joined Robie in his opinion.

The case is People v. Pool, 08 S.O.S. 5443.


Copyright 2008, Metropolitan News Company