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(People v. Taylor)

Statutory Constructionconstrue the statute in the defendant
(People v. Taylor)

It is unclear whether the 1970 Legislature in amending the murder statute by adding “a fetus” intended only to expand the victims of murder to include human beings and fetuses but to retain the same mental state for both types of victim.  In amending section 187 by defining murder as the unlawful killing of a human being or a fetus, the Legislature did not add language such as, “For purposes of this section a human being includes a fetus.”  Nor did it make fetal manslaughter a crime.  What exactly the Legislature intended is unclear.  I urge the Legislature to revisit the criminal laws applicable to fetal killings to resolve the uncertainties in this difficult area.

            When interpreting a law defining a crime and the statutory language is susceptible to two equally reasonable constructions, it is the policy in this state to construe the statute in the defendant’s favor lest defendants not have fair warning of what conduct is prohibited.  (People v. Avery (2002) 27 Cal.4th 49, 57-58; People v. Gardeley (1996) 14 Cal.4th 605, 622.)  Absent some clear indication of what mental state the Legislature intended for implied malice murder of a fetus, I would hold that a defendant who neither knows nor has reason to suspect that his female victim is pregnant, is not liable for the implied malice murder of a fetus who dies as a result of a murderous attack on the fetus’s mother.

            I would affirm the Court of Appeal’s judgment reversing defendant’s conviction for the second degree murder of Fansler’s fetus.