Metropolitan News-Enterprise


Friday, January 7, 2022


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Bonta Cautions Against Prosecutions for Feticide Based on Mother’s Actions


By a MetNews Staff Writer


California Attorney General Rob Bonta yesterday issued a “legal alert” to all district attorneys, police chiefs, and sheriffs in the state expressing his view that Penal Code §187, the murder statute, does not cover situations where a woman, through conduct such as drug abuse, causes the death of a fetus.

Bonta’s action was prompted by the prosecution in Kings County of two women, each of whose drug use while pregnant resulted in a stillborn birth. One defendant, Adora Perez, was convicted on June 15, 2018, of manslaughter and is serving an 11-year prison sentence.

The other, Chelsea Becker, had a murder charge dismissed on May 19 by Kings Superior Court Judge Robert Shane Burns based on insufficiency of the evidence that she had had ingested drugs with the intent to cause a death.

Definition of ‘Murder’

Bonta noted that Penal Code §187(a) defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.” He pointed to subsection (b) which provides an exclusion where an abortion was performed in compliance with the Therapeutic Abortion Act, or is performed by a “holder of a physician’s and surgeon’s certificate” where giving birth would be apt to result in the mother’s death, or where the abortion “was solicited, aided, abetted, or consented to by the mother of the fetus.”

Bonta commented:

“Because persons necessarily consent to their own voluntary actions, the exclusion in subdivision (b) means that persons cannot be criminally liable for their own actions or inactions that are alleged to have caused the death of their fetus.”

High Court Decision

He recited that the Legislature amended §187 to include reference to the killing of a fetus to abrogate the California Supreme Court’s 1970 decision in Keeler v. Superior Court. There, in a 5-2 decision, it was held that a man who caused the death of his ex-wife’s fetus, could not be prosecuted for murder.

Justice Stanley Mosk (now deceased) wrote:

“In this proceeding for writ of prohibition we are called upon to decide whether an unborn but viable fetus is a ‘human being’ within the meaning of the California statute defining murder….We conclude that the Legislature did not intend such a meaning, and that for us to construe the statute to the contrary and apply it to this petitioner would exceed our judicial power and deny petitioner due process of law.”

Bonta said in his advisory:

“In amending section 187, the Legislature intended to criminalize only third-party violence against pregnant persons resulting in fetal death. There is no evidence of legislative intent to extend criminal liability to pregnant persons.”


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