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Court of Appeal:
New Laws Don’t Bar Prosecution of Woman for Infanticide
Post-Delivery Conduct of Mother Provides Basis for Murder Charge, Opinion Declares
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal on Friday gave a green light to the trial of a woman for murder based on the death of her daughter shortly after her birth at home, holding that two statutes that went into effective Jan. 1 do not shield her from potential criminal liability.
However, the court said, that liability would pertain only to her conduct following the birth, including not telephoning 911 when it was evident the newborn needed medical attention based on difficulty breathing and bleeding after the umbilical cord was severed.
Defendant Kelsey Shande Carpenter gave birth at home rather than at a hospital because two other infants had been taken from her after being delivered at a hospital based on tests showing they had drugs in their blood.
Carpenter was continuing to use narcotics during her current pregnancy. She was alone when the baby, Kiera, was born. In response to the newborn’s difficulty breathing, the mother applied CPR.
Infant’s Bleeding
When Carpenter cut the umbilical cord, she did not clamp it, and there was bleeding. The mother passed out, and when she awoke, the baby was dead.
Thirty minutes later, Carpenter phoned 911.
An autopsy showed that the death was an accident “associated with methamphetamine and buprenorphine exposure and unattended delivery.”
The Office of San Diego District Attorney, in 2021, undertook a prosecution; in 2022, Carpenter was bound over for trial; in January, she moved, pursuant to Penal Code §995, for dismissal of the information based on new legislation; San Diego Superior Court Judge Michael D. Washington denied the motion; the defendant sought a writ in the Court of Appeal.
AB 2223
Assembly Bill 2223—the Reproductive Health Bill—was enacted on Sept. 27 of last year and signed into law the same day. Among other things, it added Health & Safety Code §123467 and amended §123462 of that code.
Sec. 123467(a) provides:
“Notwithstanding any other law, a person shall not be subject to civil or criminal liability or penalty, or otherwise deprived of their rights under this article, based on their actions or omissions with respect to their pregnancy or actual, potential, or alleged pregnancy outcome, including miscarriage, stillbirth, or abortion, or perinatal death due to causes that occurred in utero.”
Sec. 123462 says:
“The Legislature finds and declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.”
Those provisions, Carpenter asserted, bar a prosecution of her.
Buchanan’s Opinion
Justice Martin N. Buchanan said in Friday’s decision that “Carpenter cannot be prosecuted for her decision to have an unattended home birth or any effect that her alleged drug use or lack of prenatal care during pregnancy may have had on her baby,” but added:
“We conclude, however, that the law does not preclude the People’s prosecution of Carpenter for her acts and omissions after her daughter was born alive. Given the minimal showing the prosecution is required to make at a preliminary hearing, and after conducting an independent review of the record, we also conclude that there was sufficient cause—albeit by the thinnest of margins—to bind over Carpenter on the implied malice murder and felony child endangerment charges. We therefore deny the petition.”
He elaborated that while there is “no question” that “the plain language of the immunity established by section 123467” precludes a prosecution for decisions Carpenter made before Kiera’s birth, “sections 123462 and 123467, subdivision (a), do not prohibit the People’s prosecution of Carpenter for post-birth acts or omissions that may have led to Kiera’s death.” The jurist explained:
“Any such cause of perinatal death would necessarily not have ‘occurred in utero,’ and thus does not fall under the types of pregnancy outcomes shielded from prosecution by section 123467…. Section 123462 protects Carpenter’s right to have a home birth and make decisions regarding her childbirth, but there is no indication from the statutory language that the Legislature intended to also immunize all otherwise criminal acts or omissions occurring after a live birth.”
Evidentiary Use
The Office of Attorney General argued that Carpenter’s pre-delivery conduct, even if the acts and omissions were not in themselves criminal, could be used as they related to mens rea in connection with the post-delivery conduct.
Addressing what he termed a “challenging issue,” Buchanan said: “Though it is a close call, we believe the People have the better argument here and conclude there is no categorical exclusion of pre-birth evidence.
“…[T]he plain language of Assembly Bill 2223 does not prohibit the use of a person’s conduct during pregnancy as evidence of implied malice or any other criminal intent if the person is not otherwise immune to prosecution. We will not infer from the statute an evidentiary rule not expressly stated.”
Provides Example
He went on to comment:
“Moreover, taking Carpenter’s interpretation of the statute to its logical conclusion would lead to absurd consequences. What if, for example, a defendant made statements while pregnant that she intended to smother her baby to death once it was born and thought it would be easier to get away with the act at home than in the hospital, and then in fact did so in the hours after the baby was born? We do not believe the Legislature intended through Assembly Bill 2223 to prevent the prosecution from using such statements as evidence of intent to kill simply because they were made during pregnancy, but that would be the result compelled by Carpenter’s statutory interpretation. We therefore conclude, based on the statutory language and principles of statutory construction, that the prosecution is not categorically precluded from using pre-birth conduct as evidence of Carpenter’s intent.”
The dangers of home delivery had been pointed out to Carpenter, Buchanan noted, and she had read of the peril inherent in cutting the umbilical cord.
The case is Carpenter v. Superior Court (People), 2023 S.O.S. 2727.
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