People v. Taylor

86 P.3d 881, 11 Cal. Rptr. 3d 510, 32 Cal. 4th 863, 2004 Daily Journal DAR 4117, 2004 Cal. Daily Op. Serv. 2890, 2004 Cal. LEXIS 2821

• Court: California Supreme Court
• Decided: April 5, 2004
• Docket: S112443
• Status: Published

Opinions

Opinion

BROWN, J.

A defendant shoots a woman, killing her. As a result, her fetus also dies. In the absence of evidence the defendant knew the woman was pregnant, may the defendant be held liable for the second degree implied malice murder of the fetus? We conclude he may, and therefore reverse the judgment of the Court of Appeal.

I. Facts and Procedural Background

The following facts are taken largely from the Court of Appeal opinion. Defendant Harold Wayne Taylor and the victim, Ms. Patty Pansier, met in the spring of 1997. They dated and then lived together along with Fansler’s three children. In July 1998 Pansier moved out. Defendant was heard threatening to kill Pansier and anyone close to her if she left him. Defendant wanted to “get back” with Pansier, and told one of her friends he could not handle the breakup, and if he could not have her, “nobody else could.”

Defendant and Pansier spent New Year’s Eve 1998 together. On January 1, 1999, a police officer responded to a call regarding a woman screaming in a motel room. In the room he found defendant and Pansier. Pansier was “upset and crying,” and said defendant had raped her. Defendant was arrested, and shortly thereafter Pansier obtained a restraining order against him.

After the first of the year, Pansier asked her employer to alter her shifts so defendant would not know when she was working. In January 1999, defendant followed Pansier and her ex-husband in a car at high speeds for a mile or so, and on two other occasions tailgated her.

On March 9, 1999, defendant entered Fansler’s apartment through a ruse, and after an apparent struggle, shot and killed Pansier. Fansler’s son Robert, who heard his mother’s muffled screams, but was unable to enter the apartment, pounded on Fansler’s window outside the bedroom in which she was being attacked, and yelled “Goddamn it, you better not hurt her.” Defendant was seen leaving the apartment, and Robert and a friend, John Benback, Jr., chased but did not catch him.

Back in the apartment Pansier was found by her boyfriend John Benback, his son, John, Jr., and Robert. John Benback, Sr., testified, “She was lying on her back on the bed. The room had been pretty well trashed. There was blood everywhere.”

Pansier died of a single gunshot wound to the head. (A subsequent search of the room revealed a second bullet had penetrated and exited the nightstand, and a fragment of this bullet was found near the nightstand.) Pansier also suffered a laceration on the back of her head that penetrated to her skull and chipped the bone, and bruising on her neck, legs, and elbows.

The autopsy revealed that Pansier was pregnant. The fetus was a male between 11 and 13 weeks old who died as a result of his mother’s death. The examining pathologist could not discern that Pansier, who weighed approximately 200 pounds, was pregnant just by observing her on the examination table.

The prosecution proceeded on a theory of second degree implied malice murder as to the fetus.¹ The jury convicted defendant of two counts of second degree murder, and found true attendant firearm enhancements. (Pen. Code, § 187, subd. (a).)² He was sentenced to 65-years-to-life in prison.

The Court of Appeal reversed defendant’s second degree murder conviction based on the fetus’s death. The court concluded there was evidence to support the physical, but not the mental, component of implied malice murder. “There is not an iota of evidence that [defendant] knew his conduct endangered fetal life and acted with disregard of that fetal life. It is undisputed that the fetus was [11] to 13 weeks old; the pregnancy was not yet visible and [defendant] did not know Ms. Pansier was pregnant.” In contrast to “the classic example of indiscriminate shooting/implied malice” of a person firing a bullet through a window not knowing or caring if anyone is behind it, “[t]he undetectable early pregnancy [here] was too latent and remote a risk factor to bear on [defendant’s] liability or the gravity of his offense.” “[T]he risk to unknown fetal life is latent and indeterminate, something the average person would not be aware of or consciously disregard.” “[W]ere we to adopt the People’s position, we would dispense with the subjective mental component of implied malice. Where is the evidence that [defendant] acted with knowledge of the danger to, and conscious disregard for, fetal life? There is none. This is dispositive.”

We granted the Attorney General’s petition for review.

II. Discussion

“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (People v. Hansen (1994) 9 Cal.4th 300, 307 [36 Cal.Rptr.2d 609, 885 P.2d 1022] (.Hansen); § 187, subd. (a).) “[Viability is not an element of fetal homicide under section 187, subdivision (a),” but the state must demonstrate “that the fetus has progressed beyond the embryonic stage of seven to eight weeks.” (People v. Davis (1994) 7 Cal.4th 797, 814-815 [30 Cal.Rptr.2d 50, 872 P.2d 591].)

“Malice may be either express or implied. It is express when the defendant manifests ‘a deliberate intention unlawfully to take away the life of a fellow creature.,[³] (§ 188.) It is implied . . . ‘when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’ [citation]. For convenience, we shall refer to this mental state as ‘conscious disregard for life.’ ” (People v. Lasko (2000) 23 Cal.4th 101, 107 [96 Cal.Rptr.2d 441, 999 P.2d 666].) “[I]mplied malice has both a physical and a mental component, the physical component being the performance ‘ “of an act, the natural consequences of which are dangerous to life,” ’ and the mental component being the requirement that the defendant ‘ “knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.” ’ ” (Hansen, supra, 9 Cal.4th at p. 308.)

“It is plain that implied malice aforethought does not exist in the perpetratqr only in relation' to an intended victim. Recklessness need not be cognizant of the identity of a victim or even of his existence.” (People v. Scott (1996) 14 Cal.4th 544, 555 [59 Cal.Rptr.2d 178, 927 P.2d 288] (cone, opn. of Mosk, J.); see Bland, supra, 28 Cal.4th at p. 323 [quoting Scott (cone, opn. of Mosk, J.) with approval]; People v. Albright (1985) 173 Cal.App.3d 883, 887 [219 Cal.Rptr. 334] [implied malice does not require awareness of life-threatening risk to a particular person]; People v. Stein (1913) 23 Cal.App. 108, 115 [137 P. 271] [“malice will be implied, although the perpetrator of the act had no malice against any particular person of the multitude into which he so fired”].) When a defendant commits an act, the natural consequences of which are dangerous to human life, with a conscious disregard for life in general, he acts with implied malice towards those he ends up killing. There is no requirement the defendant specifically know of the existence of each victim.

To illustrate, in People v. Watson (1981) 30 Cal.3d 290, 293-294 [179 Cal.Rptr. 43, 637 P.2d 279], the defendant killed a mother and her six-year-old daughter while driving under the influence of alcohol. We found the evidence supported a conclusion that the “defendant’s conduct was sufficiently wanton” (id. at p. 300) to hold him to answer on two charges of second degree murder (id. at pp. 294, 301). Nowhere in our discussion did we indicate the defendant was required to have a subjective awareness of his particular victims, i.e., the mother and daughter killed, for an implied malice murder charge to proceed. Nothing in the language of section 187, subdivision (a), allows for a different analysis for a fetus. Indeed, had the mother in Watson been pregnant, it is difficult to see any logical basis on which to argue the defendant could not have been held to answer for three charges of second degree murder.

Here, as the Attorney General notes, defendant “knowingly put human life at grave risk when he fired his gun twice in an occupied apartment building.” As the Attorney General observed during oral argument, if a gunman simply walked down the hall of an apartment building and fired through the closed doors, he would be liable for the murder of all the victims struck by his bullets—including a fetus of one of his anonymous victims who happened to be pregnant. Likewise, defense counsel conceded at oral argument that defendant would be guilty of implied malice murder if one of his bullets had struck an infant concealed by the bedcovers. On this point, both counsel are right. Had one of Fansler’s other children died during defendant’s assault, there would be no inquiry into whether defendant knew the child was present for implied malice murder liability to attach. Similarly, there is no principled basis on which to require defendant to know Pansier was pregnant to justify an implied malice murder conviction as to her fetus.

In battering and shooting Pansier, 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.

Moreover, section 12022.9 provides for a sentence enhancement under certain circumstances for a defendant’s personal infliction of injury on a pregnant woman resulting in the termination of the pregnancy. It applies only when the defendant “knows or reasonably should know that the victim is pregnant.” (§ 12022.9.) As the Attorney General notes, the “fact that the Legislature explicitly imposed a knowledge requirement in section 12022.9, but not in section 187,” further confirms no such knowledge requirement was intended for implied malice murder.

Relying on People v. Dennis (1998) 17 Cal.4th 468 [71 Cal.Rptr.2d 680, 950 P.2d 1035], defendant asserts that this court has held or assumed that implied malice must be shown separately with respect to the fetus. In Dennis, the defendant killed his ex-wife, who was eight months pregnant, and her fetus with a machete-like weapon. As a result of cuts to the mother’s abdomen, the fetus was expelled and suffered severe chopping wounds. (Id. at pp. 489, 495-496.) The jury convicted defendant of the first degree murder of the mother and second degree murder of the fetus. (Id. at p. 489.) In connection with defendant’s claim that his penalty was disproportionate, we stated, “Defendant notes the jury made no express finding of his premeditation, deliberation, or intent to kill the fetus, and he suggests the jury’s verdict may even imply a finding he was unaware of the fetus’s existence. We disagree. The jury’s verdict of second degree murder necessarily found that at the very least, defendant bore implied malice toward the fetus. [Citation.] The jury was so instructed.” (Id. at p. 512.) In connection with defendant’s claim of instructional error, we stated, “[t]he instructions made plain that malice was a separate element that had to be proved for each of the two murders charged. The trial court instructed the jury that a verdict of guilt of the alleged fetal murder required a finding that defendant killed the fetus with malice aforethought. ... It is not reasonably likely the instructions misled the jury into thinking it could convict defendant of two murders while finding malice aforethought only as to one victim’s death.” (Id. at pp. 514-515.)

In Dennis, we simply noted the jury was required to find malice as to the fetus in order to convict the defendant of his murder; we did not say how such malice was demonstrated. To the extent Dennis assumed that a defendant must have a requisite mental state as to a specific victim, that assumption was unexamined and unnecessary to rejecting the defendant’s claim of disproportionate penalty or instructional error.

Defendant also asserts that the legislative history of section 187 demonstrates that the Legislature did not intend to hold a defendant liable for the murder of a fetus unless he had knowledge the woman was pregnant. Prior to 1970, the killing of a fetus was not murder. In Keeler v. Superior Court (1970) 2 Cal.3d 619, 623 [87 Cal.Rptr. 481, 470 P.2d 617], a fetus was deliberately “ ‘ stomp [ed] out of’ ” the mother, but this court held a fetus was not a “human being” within the meaning of former section 187, subdivision (a). Following Keeler, the Legislature amended section 187, subdivision (a) to provide that murder was the unlawful killing of either a human being or a fetus. (Stats. 1970, ch. 1311, § 1, p. 2440.) Relying on a law review article interpreting the legislative history of this amendment, defendant contends, “the stated purpose of the bill’s author was ‘to make Robert Keeler’s actions susceptible to a charge of murder.’ ”

The language of section 187, subdivision (a), that “[m]urder is the unlawful killing of a human being, or a fetus, with malice aforethought,” is clear, making resort to its legislative history unnecessary. Moreover, we find no such stated purpose in the legislative history. In any event, given Keeler was the motivating force behind the 1970 amendment to section 187, subdivision (a), any references in the legislative history as to how the amendment would punish “Keeler’s actions,” which involved an intentional attack on a fetus, are to be expected and do not preclude our interpretation here.

Nor is the fact that the Legislature chose to simply include fetuses in the statute, and not separately define them as human beings, indicative of any intent to modify the existing law of murder which, as a result of the amendment, would now also apply to a fetus. As defendant himself notes, “[t]here is no suggestion in the legislative history of any intent to alter the established common-law definition of implied malice for purposes of the new crime of fetal murder.” Nor, contrary to defendant’s contention, are we concluding the Legislature in 1970 “imput[ed] malice to fetal life based upon malice directed to human life.” Rather, by engaging in the conduct he did, defendant demonstrated a conscious disregard for all life, fetal or otherwise, and hence is liable for all deaths caused by his conduct.

Defendant further asserts that the fact that there is no crime of voluntary or involuntary manslaughter of a fetus demonstrates that the Legislature intended to “restrict the feticide provision to defendants who specifically intend to kill a fetus itself ... or, at most, to defendants who know full well their attack on the mother will likely have this result.” He also asserts, “The [L]egislature would not exclude from feticide a large class of criminal conduct posing a more palpable risk to fetal life, yet punish [defendant’s] less cognizant conduct as fetal murder.” Of course, a defendant who commits murder is, contrary to defendant’s implicit suggestion, more culpable than one who commits voluntary or involuntary manslaughter. Moreover, the Legislature’s decision to amend section 187, subdivision (a) and punish the malicious killing of a fetus, but not also amend the manslaughter statute, says nothing about the proper interpretation of the murder statute.

Finally defendant asserts that to the extent section 187 is ambiguous, it should be construed in his favor. It is not ambiguous. Nor is our conclusion today “an overruling of controlling authority or a sudden, unforeseeable enlargement of a statute” in violation of ex post facto or due process principles. (People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79 P.3d 542].) Rather, unlike the situation in Davis, on which defendant relies, “there was no uniform appellate rule interpreting the pertinent statutory language contrary to our holding here when defendant” killed Pansier and her fetus. (People v. Loeun (1997) 17 Cal.4th 1, 12 [69 Cal.Rptr.2d 776, 947 P.2d 1313].)

Disposition

The judgment of the Court of Appeal is reversed, and the case remanded for proceedings consistent with this opinion.

George, C. 1, Baxter, 1, Werdegar, 1, Chin, 1, and Moreno, 1, concurred.

1 The jury was instructed that in order to prove the crime of second degree murder as to the fetus, “each of the following elements must be proved: A human fetus was killed; the killing was unlawful; and the killing was done with malice aforethought.” It was also instructed that “Malice is implied when, one, the killing results from an intentional act; two, the natural consequences of the act are dangerous to human life; and three, the act was deliberately performed with knowledge of the danger to and conscious disregard for human life.” “When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in death of a human being or human fetus.”

2 All further statutory references are to the Penal Code.

3 The issue of express malice and transferred intent is not before us in this case. (See generally People v. Bland (2002) 28 Cal.4th 313 [121 Cal.Rptr.2d 546, 48 P.3d 1107] (Bland).)