PEOPLE v. DAVIS

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Robert A. DAVIS, Defendant and Appellant.

No. D016246.

Decided: May 04, 1993

Francis J. Bardsley, Public Defender, Jeffrey E. Thoma and Gary R. Nichols, Deputy Public Defenders, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., M. Howard Wayne, Supervising Deputy Atty. Gen., and Pamela K. Klahn, Deputy Atty. Gen., for plaintiff and respondent.

Penal Code 1 section 187, subdivision (a) provides that “[m]urder is the unlawful killing of a human being, or a fetus,2 with malice aforethought.”  In this opinion we determine that fetal viability is not an element of the crime of murder of a fetus.   We recognize, however, that reasonably well-established precedent as it existed at the time of this trial precluded construction of section 187 to apply to a nonviable fetus.   Accordingly, our determination that this preexisting precedent is erroneous constitutes a modification in an important element of the crime of murder of a fetus.   Based upon our understanding of precedent developed to protect due process rights, we feel constrained to refrain from applying the new interpretation of the fetal murder elements to cases arising before the publication of this opinion.   Finding that the court's instructions to the jury defining viability under the law as it then existed were prejudicially erroneous, we are therefore required to reverse the judgment of murder and remand for a new trial on that count.

FACTUAL AND PROCEDURAL BACKGROUND

On March 1, 1991, Maria Flores (Flores), who was six months pregnant, went to a check-cashing business to cash her welfare check.   As Flores left the business with $378 in cash, she was accosted by Robert A. Davis (Davis), who pulled a gun from the waistband of his pants and demanded her money.   When Flores refused, Davis grabbed for her purse, shot her in the chest at close range and then fled.

Flores underwent surgery to save her life.   Small holes in her uterine wall were sutured to prevent bleeding, but no further obstetrical surgery was undertaken because of the immaturity of the fetus.   The next day, the fetus was stillborn, the result of Flores's loss of blood, low blood pressure and state of shock.   At trial, experts estimated the fetus's gestational age variously at 23 to 25 weeks.

The charges levied against Davis included an allegation he had murdered the fetus.  (§ 187, subd. (a).)  In relation to that charge, the trial court determined it would not instruct the jury under CALJIC No. 8.10 that “a viable human fetus is one who has attained such form and development of organs as to be normally capable of living outside of the uterus,” and instead instructed that “[a] fetus is viable when it has achieved the capability for independent existence;  that is, when it is possible for it to survive the trauma of birth, although with artificial medical aid.”

A jury convicted Davis of murder of a fetus during the course of a robbery (§ 187, subd. (a);  § 190.2, subd. (a)(17));  assault with a firearm (§ 245, subd. (a)(2));  and robbery (§ 211).   It found that in the commission of each offense he had personally used a firearm.  (§ 12022.5, subd. (a).)  The court sentenced him to life without the possibility of parole plus five years.

 On appeal Davis contends the trial court prejudicially erred in its instruction to the jury on fetal viability.   The Attorney General argues that no instruction was necessary because section 187, subdivision (a) does not require that the fetus be viable.   Our review of the wording of section 187, its legislative history, the treatment of the issue in other jurisdictions, and scholarly comment on the subject convinces us that the Attorney General's position is sound, and that fetal viability is not an element of homicide under section 187, subdivision (a).

DISCUSSION

I. HISTORICAL BACKGROUNDA. Legislative History

In 1970 section 187 provided:  “Murder is the unlawful killing of a human being, with malice aforethought.”  (Keeler v. Superior Court (1970) 2 Cal.3d 619, 624, 87 Cal.Rptr. 481, 470 P.2d 617;  Historical Note, 47 West's Ann.Pen.Code (1988 ed.) § 187, p. 339.)   In that year, faced with a defendant who had killed the fetus his estranged wife was carrying by hitting and kneeing her in the abdomen, the California Supreme Court held the defendant's acts against the fetus were not murder under the common law or under the then existing statute.  (Keeler v. Superior Court, supra, 2 Cal.3d at pp. 624–631, 87 Cal.Rptr. 481, 470 P.2d 617.)   The court explained that in 1850 when the Legislature enacted the murder statute it intended “human being” to have the common law meaning of a person who had been born alive, and did not intend feticide to be an offense under California law.3  (Id. at pp. 625–628, 87 Cal.Rptr. 481, 470 P.2d 617.)   The court also observed that when the new Penal Code was adopted in 1872 there was no indication of any different intent.  (Id. at p. 628, 87 Cal.Rptr. 481, 470 P.2d 617.)

The Legislature reacted swiftly to the Keeler decision.   Shortly after it was filed, Craig Biddle, the California Assembly's Majority Floor Leader, took over sponsorship of Assembly Bill No. 816 and offered amendments to sections 187 (murder) and 192 (manslaughter) to include a provision that a fetus advanced to or beyond the 20th week of gestation is a human being within the meaning of the statutes.  (Assem.Bill No. 816, 1970 Regular Session, as amended June 24, 1970;  Comment (1971) 2 Pacific L.J. 170, 172 (hereinafter Comment).)   On July 10, 1970, the bill was further amended to include exceptions which eliminated potential conflicts with the abortion statutes.  (Assem.Bill No. 816, 1970 Regular Session, as amended July 10, 1970;  Comment at p. 172.)   On July 17, 1970, the bill was amended in the assembly.   In this version the requirement that the fetus be at least 20 weeks in gestation was eliminated.  (Assem.Bill No. 816, 1970 Regular Session, as amended July 17, 1970;  Comment at p. 173.)   Although the bill met with opposition on the assembly floor, it was passed and sent to the senate, where it was widely debated.  (Comment at pp. 173–174.)

Amendments suggested in senate debate were incorporated into the bill, which was passed by both houses of the Legislature and signed by the Governor on September 17, 1970.  (Comment at p. 174.)   The July 17, 1970 version of the bill had included a fetus in the definition of a human being.   In its final form, however, and as presently contained in the statute, murder of a fetus is stated as a separate and distinct crime, no attempt being made to classify a fetus as a human being.   The statute also provides that section 187 does not apply to acts which comply with statutes regulating lawful abortion.4

As amended, section 187 reads as follows:

“(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

“(b) This section shall not apply to any person who commits an act which results in the death of a fetus if any of the following apply:

“(1) The act complied with the Therapeutic Abortion Act, Chapter 11 (commencing with Section 25950) of Division 20 of the Health and Safety Code.

“(2) The act was committed by a holder of a physician's and surgeon's certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.

“(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.

“(c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.”

B. Case Law Construing Section 187, Subdivision (a)

Following the amendment of section 187, the word “fetus,” within the meaning of the statute, was construed in an appellate decision to refer only to a viable fetus.   In People v. Smith (1976) 59 Cal.App.3d 751, 129 Cal.Rptr. 498, the defendant had choked, pushed and kicked his wife, who was 12 to 15 weeks pregnant, saying he did not want the baby to live.   She subsequently miscarried.   It was stipulated at trial that the fetus was not viable at the time of the miscarriage.  (Id. at pp. 753–754, 129 Cal.Rptr. 498.)

The People appealed dismissal of the count that the defendant had murdered the fetus.  (People v. Smith, supra, 59 Cal.App.3d at pp. 752–753, 129 Cal.Rptr. 498.)   The second district affirmed, construing the statute to apply only to a viable fetus.  (Id. at p. 759, 129 Cal.Rptr. 498.)   The court reasoned:  “Logically, one cannot destroy independent human life prior to the time it has come into existence.”  (Id. at p. 756, 129 Cal.Rptr. 498.)   The court noted that advances in medical science have increased the capability of independent human life prior to birth, and thus there is justification for expanding legal protection beyond children born alive to fetuses (id. at pp. 756–757, 129 Cal.Rptr. 498), but “[i]f destruction of a nonviable fetus were susceptible to classification as the taking of human life and therefore murder, then the mother no more than the father would have the right to take human life.”  (Id. at p. 757, 129 Cal.Rptr. 498.)   Citing Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, the court noted the mother's absolute right to destroy the fetus during the first trimester of gestation and near absolute right to do so during the second trimester, observing that until viability the state has no interest in the fetus insofar as affording it protection against the wishes of the mother.   The Smith court opined that “[i]mplicit in Wade is the conclusion that as a matter of constitutional law the destruction of a nonviable fetus is not a taking of human life.   It follows that such destruction cannot constitute murder or other form of homicide, whether committed by a mother, a father (as here), or a third person.”   (Ibid.)

We submit that this reasoning is erroneous.   As we will discuss below, the Roe decision does not require the conclusion that the killing of a previable fetus without the mother's consent cannot constitute murder.   Roe only requires that the state not prohibit the mother from destroying a previable fetus.

Following the Smith decision, the California courts have not reexamined this issue, but appear to have assumed that viability is an element of fetal murder.   In People v. Apodaca (1978) 76 Cal.App.3d 479, 142 Cal.Rptr. 830, which involved an appeal from a conviction of fetal murder, the fifth district ruled that it need not reach the constitutional question of whether the trial court had erred in failing to define the word “fetus” in terms of viability for the jury as the defendant had requested, because uncontroverted medical testimony had indicated during trial that the fetus was viable at the time it was killed.  (Id. at p. 487, 142 Cal.Rptr. 830.)

In People v. Smith (1987) 188 Cal.App.3d 1495, 234 Cal.Rptr. 142 the defendant was accused of the double murder of a woman and her unborn child.   The trial court had instructed that within the meaning of section 187 a fetus is defined as “a viable unborn child.”  (Id. at pp. 1512–1513, 234 Cal.Rptr. 142.)   The fifth district ruled that the trial court had erred in not instructing the jury regarding the legal definition of the term viable, but the defendant had not been prejudiced because no evidence was presented showing the fetus was not viable.  (Id. at pp. 1514–1515, 234 Cal.Rptr. 142.)

Following these decisions the California Supreme Court in People v. Hamilton (1989) 48 Cal.3d 1142, 1171, 259 Cal.Rptr. 701, 774 P.2d 730 refused to consider whether an instruction on viability was sufficient.   There, the defendant argued on appeal that the trial court's instruction, combining the language used in the earlier Smith case and in Apodaca, contained a latent ambiguity which improperly implied that a fetus is viable if it is capable of being born alive, even if it could not survive for a sustained period outside of the womb.  (Ibid.)  The Court did not discuss the merits of the claim, because there was uncontradicted evidence the fetus had attained viability under any accepted test.  (Id. at pp. 1171–1173, 259 Cal.Rptr. 701, 774 P.2d 730.)   Although in Hamilton the Court did not disapprove the viability requirement, it has never ruled on the issue of whether viability is properly included as an element of the crime of fetal murder.

II. ANALYSIS

A. Smith Misapplied the Teachings of Roe v. Wade

In Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, the U.S. Supreme Court recognized a mother's right to privacy, which includes the decision to have an abortion.   The Court determined, however, that this right must be considered against important state interests in protecting health, medical standards, and prenatal life.  (Id. at pp. 154, 155, 93 S.Ct. at pp. 727, 728.) 5  The court also ruled that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”  (Id. at p. 158, 93 S.Ct. at p. 729.)   The court determined that the state's legitimate interests of protecting maternal health and fetal life grow as a woman's pregnancy progresses, and after the first trimester of pregnancy the state's interest in the mother's health becomes sufficiently compelling to allow regulation of the abortion procedure to protect maternal health.   Regarding the state's interest in the potential life, the compelling point at which the state's interest in protecting fetal life outweighs the mother's privacy right is the time when the fetus becomes viable, i.e., when it presumably has the capability of life outside the womb.   At this point the state may proscribe abortion.  (Id. at pp. 162–164, 93 S.Ct. at pp. 731–732.)

Central to the Roe Court's analysis is the balancing of the mother's constitutionally legitimate privacy right against the state's constitutionally legitimate interests in protecting maternal health and fetal life.  Roe declares that the state had no legitimate interest in protecting prenatal life until viability only in the narrow context of the mother's abortion decision.   The Court does not say that the state has no legitimate interest in the fetus until viability.   As explained by Forsythe in “Homicide of the Unborn Child:  the Born Alive Rule and Other Legal Anachronisms” (1987) 21 Val.U.L.Rev. 563:

“ ‘While the decision in Roe declares that the state may not protect the potential life of the human fetus from the moment of conception, it does so only in the very narrow context of the mother's abortion decision.’   [Citation.]  “Under Roe v. Wade, therefore, the right to abortion is encompassed within the woman's right to constitutional privacy.   The fetus is not a ‘person’ for purposes of the Fourteenth Amendment and has no constitutional rights that would outweigh the exercise of the woman's Fourteenth Amendment rights.   The fetus' rights and the state's interest, or lack of interest, in protecting maternal health and in protecting the life of the fetus, were distinctly balanced against the woman's right to privacy in the context of consensual abortion.”  (Id. at p. 616.)

 In our view Roe's teachings do not apply to a situation where a third party kills a fetus without the mother's consent.   When the state's interest in protecting the life of a developing fetus is not counterbalanced against a mother's privacy right to an abortion, the state's interest should prevail.  (See Parness, “Crimes Against the Unborn:  Protecting and Respecting the Potentiality of Human Life” (1985) 22 Harv.J. on Legis. 97, 112.)6  Roe only provides that at the point of viability protection of the fetus takes precedence over the mother's right to decide to terminate her pregnancy.

King, in her article “The Juridical Status of the Fetus:  A Proposal for Legal Protection of the Unborn” (1979) 77 Mich.L.Rev. 1647, states:

“Where the protectable interests of fully mature members do not conflict with those of less mature members, there is no justification for ignoring the latter's claims.   The Roe opinion was correct in recognizing the state's legitimate interest in protecting the previable fetus.   In ․ criminal law, when that interest does not oppose a protected interest of the mature mother, the state should not hesitate to vindicate it.”  (Id. at p. 1678.)

 We are satisfied, therefore, that when the mother's privacy interests are not present the Legislature is free to determine to protect the previable fetus against third party nonconsensual destruction.   Further, the culpability to be assigned to feticide and the importance to be allocated to the continued development of the fetus, whether viable or nonviable, are surely matters for legislative discretion.   We see no reason why the Legislature may not elect to equate malevolent killing of a fetus with murder.   Homicide, of course, by definition imports the killing of a human being.   While a previable fetus may not be a person for purposes of due process comparison with other fundamental rights, we see no impediment to the Legislature's enlargement of the crime of “murder” to include feticide.   The criminal law of this state is purely statutory (see § 6) and the Legislature is presumably entitled to define felonies as it may choose.

B. Comparison with Statutes in Other States

To better understand the relationship between the teachings of Roe and the California murder statute, we have looked to criminal statutes in other states.   Our search revealed no other state statute which specifically criminalizes the nonconsensual killing of a “fetus.”   We found statutes in several states, however, which criminalize the killing of an “unborn child.”   In Arizona, Illinois, Louisiana, Minnesota, North Dakota and Utah, the statutes do not require that the unborn child be at a particular stage of development.7

Prior to 1980, Illinois had no separate feticide statute.  (People v. Ford (4th Dist.1991) 221 Ill.App.3d 354, 163 Ill.Dec. 766, 774, 581 N.E.2d 1189, 1197.)   During that year in People v. Greer (Ill.1980) 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203, the Illinois Supreme Court reversed a defendant's conviction of murder of the fetus his girlfriend was carrying, holding that the defendant's act was not covered by the homicide statute and under the common law the killing of a fetus was not murder unless the fetus was born alive and subsequently died of its injuries.  (Id. 37 Ill.Dec. at pp. 317, 323, at pp. 207, 213.)8

In response to the Greer decision, in 1981 the Illinois Legislature enacted a statute criminalizing the nonconsensual killing of an unborn child.   (Ill.Rev.Stat.1981, Public Act 82–303;  People v. Ford, supra, 163 Ill.Dec. at p. 775, 581 N.E.2d at p. 1198.)   Included as an element of the crime under this statute was the requirement that the fetus be “capable, at the time of its death, of sustained life outside of the mother's womb with or without life support equipment.”  (Ill.Rev.Stat.1981, ch. 38, par. 9–1.1(b);  People v. Ford, supra, 163 Ill.Dec. at p. 775, 581 N.E.2d at p. 1198.)   In 1986 the Illinois Legislature repealed the 1981 statute and enacted various provisions criminalizing acts against unborn children.   Under the new statutes the Legislature eliminated the viability requirement by defining an unborn child as “any individual of the human species from fertilization until birth.”   (Ill.Rev.Stat.1987, ch. 38, par. 9–1.2(b)(1);  People v. Ford, supra, 163 Ill.Dec. at p. 775, 581 N.E.2d at p. 1198.)

The new statute was considered in People v. Ford, supra, 163 Ill.Dec. 766, 581 N.E.2d 1189.   There, the appellant had been convicted under the statute of killing his 17–year–old stepdaughter's 5 1/2–month–old fetus.  (Id. 163 Ill.Dec. at p. 767, 581 N.E.2d at p. 1190.)   The defendant contended the Illinois statute violates constitutional equal protection and due process because it fails to distinguish between the viable and nonviable fetus.   (Ibid.)

The appellate court ruled that a defendant who assaults a pregnant woman, causing the death of her fetus, and a pregnant woman who chooses to terminate her pregnancy are not similarly situated.  “A woman has a privacy interest in terminating her pregnancy;  however, defendant has no such interest.   The statute simply protects the mother and the unborn child from the intentional wrongdoing of a third party.”  (People v. Ford, supra, 163 Ill.Dec. at p. 776, 581 N.E.2d at p. 1199.)   The court ruled that the statute does not violate equal protection in that it does not affect any protectable interest held by the defendant and it bears a rational relationship to a valid legislative purpose—protecting the potentiality of human life.  (Id. 163 Ill.Dec. at pp. 776–777, 581 N.E.2d at pp. 1199–1200.)   The court also held there was no due process violation.  (Id. 163 Ill.Dec. at pp. 777–779, at pp. 1200–1202.)

Minnesota statutes sections 609.2661 and 609.2662 (1988) define the crime of murder of an unborn child.  “Unborn child,” is defined as “the unborn offspring of a human being conceived, but not yet born.”  (State v. Merrill (Minn.1990) 450 N.W.2d 318, 320–321, quoting Minn.Stat. (1988) § 609.266(a).)   A conviction under this statute was achieved in State v. Merrill, supra, at page 320, where the defendant shot and killed a woman and her 27–28–day–old embryo.   On appeal the defendant contended the statute violated equal protection because it did not distinguish between viable and nonviable fetuses.  (Id. at p. 321.)   The court rejected the argument, stating that the woman's choice to terminate her pregnancy is based on her constitutionally protected right to privacy, which encompasses her decision whether to continue or terminate her pregnancy.  (Id. at pp. 321–322.)   “Roe v. Wade protects the woman's right of choice;  it does not protect, much less confer on an assailant, a third-party unilateral right to destroy the fetus.”  (Id. at p. 322.)

The Merrill court opined:

“The state's interest in protecting the ‘potentiality of human life’ includes protection of the unborn child, whether an embryo or a nonviable or viable fetus, and it protects, too, the woman's interest in her unborn child and her right to decide whether it shall be carried in utero.   The interest of a criminal assailant in terminating a woman's pregnancy does not outweigh the woman's right to continue the pregnancy.   In this context, the viability of the fetus is ‘simply immaterial’ to an equal protection challenge to the feticide statute.”  (State v. Merrill, supra, 450 N.W.2d at p. 322.)

 Although Ford and Merrill involve challenges to statutes which specifically provide that an unborn child need not be viable to be the subject of homicide, their reasoning is applicable here.   Under the analyses of these two cases, criminalization of the killing of a fetus without regard to the level of its development is not violative of the rulings expressed in Roe or of equal protection or due process.   We thus perceive no reason not to apply section 187, subdivision (a) in accordance with its plain meaning:  the killing of a fetus with malice aforethought, which killing does not fall under any of the exceptions listed in subdivision (b), is murder.   In order for a fetus to be a subject of the murder statute, it need only be shown that it has progressed beyond the embryonic stage of seven to eight weeks.   The courts may not restrict the application of the fetal murder statute to limit the mother's interest in continuing her pregnancy and the state's interest in protecting fetal life to include only viable fetuses.   We respectfully reject Smith's requirement that a fetus be viable in order to be the subject of murder under section 187.

We are confirmed in reaching this result not only by our analysis of Roe v. Wade concepts and the treatment of the subject by other jurisdictions, but by two rather common observations.   It surely makes little difference to the woman with child in utero, hoping and expecting to carry the child full term, whether the child is killed at 20 weeks or 25 weeks of existence.   Similarly, the criminal culpability of the perpetrator of the killing seems equal, regardless of the age of the fetus.   We believe it is therefore entirely within the power of the state to impose upon the killing of any fetus the same penalty as is prescribed for murder of a human being.

III. DUE PROCESS CONCERNS

If viability of the fetus is not an element of fetal homicide, then no instruction on viability was required of the court and hence error in the instruction given might be considered irrelevant.   Appellant contends, however, he is entitled to be tried in accordance with the definition of fetal murder in effect at the time of the crime, rather than a new definition enunciated at a later time.   He contends it would be a violation of due process of law to change the definition of this major crime, with its attendant severe punishment, after the conduct allegedly constituting the crime had been committed.   As our discussion above indicates, the requirement of viability of the fetus was imposed early in the process of judicial construction of the statute, and although the precedent so obtained is only that of our intermediate appellate court, it has been followed in several Court of Appeal cases without disapproval and referenced in a Supreme Court case.   Our redefinition of the crime is unquestionably a major change in the law.   We therefore proceed to consider the due process argument.

 Article I, sections 9 and 10 of the United States Constitution and article I, section 9 of the California Constitution preclude the ex post facto application of criminal statutes.   These constitutional limitations are literally applicable only to legislative enactments.  (1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Introduction to Crimes, § 20, pp. 25, 26.)   Since, however, “an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as article I, section 10 of the Constitution forbids[,]” state courts are precluded by the Due Process Clause from imposing such retroactivity.  (Bouie v. City of Columbia 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894.)   Hence the rule is formulated that “[i]f a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect.”  (Id. at p. 354, 84 S.Ct. at p. 1703, quoting Hall, General Principles of Criminal Law (2d ed. 1960) at p. 61.)

As defined in People v. Sobiek (1973) 30 Cal.App.3d 458 at page 472, 106 Cal.Rptr. 519, the ex post facto preclusion comes into play when a new statute or judicial interpretation of criminal law “alters the situation of an accused to his disadvantage by:  (a) making criminal an action innocent when done;  (b) making more serious an act already criminal when done;  (c) inflicting greater punishment than that attending the act at the time it was committed;  or (d) permitting a person to be convicted with less evidence than was required when the act was done.”

It could be argued that the due process limitation on retroactive application of judicially modified criminal law should be rooted in the concept of fair warning of the general nature of the criminal activity.   The leading federal case on the issue, Bouie v. City of Columbia, supra, 378 U.S. 347, 84 S.Ct. 1697, emphasized the need to give “fair warning” of the criminal nature of acts, saying that the previous South Carolina law “gave petitioners no warning whatever that this criminal statute would be construed ․ as incorporating a doctrine found only in civil trespass cases.”  (Id. at p. 359, 84 S.Ct. at p. 1705.)   The defendants in Bouie had been convicted of trespass when they refused to leave a retail establishment after being given notice to do so.   The trespass statute had previously been interpreted to require the posting or giving of notice before entry.   The judicial alteration of the law thus made criminal that which had not previously been a crime.

Further light is shed on this subject by Rose v. Locke (1975) 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185.   The ex post facto contention here rested not upon a change in interpretation of a criminal statute, but upon its original judicial interpretation which the defendant claimed could not have been anticipated.   The defendant was convicted of forced cunnilingus, which the court permitted the jury to find violated a statute which prohibited “crimes against nature.”  (Id. at pp. 48, 49, 96 S.Ct. at pp. 243, 244.)   The Supreme Court identified the potential due process violation as one of holding an individual criminally responsible for conduct which he could not reasonably anticipate would be proscribed.   In upholding the conviction, and finding no due process violation, the court stated that “[a]ll the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.”  (Id. at p. 50, 96 S.Ct. at p. 244.)

Finally, in terms of federal authorities, we review Marks v. United States (1977) 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260.   The issue here was which definition of obscenity should be used in the trial of defendants accused of transporting obscene materials in interstate commerce.   At the time of defendants' conduct the standard for obscenity was that set forth in Memoirs v. Massachusetts (1966) 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1—characterized as requiring a finding that the material is “ ‘utterly without redeeming social value.’ ”  (Marks v. United States, supra, 430 U.S. at p. 191, 97 S.Ct. at p. 992.)   Before the trial of the defendants the Supreme Court changed the standard in Miller v. California (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, which applied, among other guidelines, a test of “contemporary community standards.”   Acknowledging that the new test was more likely to produce a conviction, the court held that applying the Miller standard to conduct taken before the Miller case was published would violate due process.

In this appeal we do not deal with an act the defendant might have thought not to be criminal, later labeled as such by judicial interpretation.   Obviously Davis's assault and robbery of Ms. Flores was an act of highly felonious proportions, and it seems ridiculous to suggest that Davis would have acted differently had he been adequately “warned” of the possible penalty for fetal murder.   As Justice Burke remarked in his dissent in Keeler v. Superior Court, supra, 2 Cal.3d at page 644, 87 Cal.Rptr. 481, 470 P.2d 617:  “Aside from the absurdity of the ․ premise that defendant consulted Coke, Blackstone or Hale before kicking Baby Girl Vogt to death, it is clear that defendant had adequate notice that his act could constitute homicide.”   This approach finds support in People v. Sobiek, supra, 30 Cal.App.3d 458, 106 Cal.Rptr. 519, which involved a change in existing appellate court authority on the subject of embezzlement.   The court ruled that a partner could be found guilty of embezzlement of partnership property, reversing previous judicial authority to the contrary.   The court held that its ruling could be applied retroactively to the defendant's conduct.

The Sobiek court distinguished Bouie by noting that in Bouie the enlarging of the criminal statute was unforeseeable:  “That was an entirely different situation from the one at bench where not only is the interpretation of the [criminal statute] reasonable, but the respondent must have known that his act was immoral and that he was taking the property of another.”   (Id. at p. 474, 106 Cal.Rptr. 519.)   The Sobiek court relied on United States v. Rundle (3rd Cir.1967) 383 F.2d 421, which involved a contention that application of a new Pennsylvania felony murder rule constituted a violation of ex post facto principles.   In rejecting this argument the court noted that the defendants had fair notice that their conduct was criminal, and quoted a passage from Justice Holmes in Nash v. United States (1913) 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232:  “․ the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.   If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here;  he may incur the penalty of death․  ‘The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct.’ ”  (quoted in People v. Sobiek, supra, at pp. 474, 475, 106 Cal.Rptr. 519, emphasis in Nash v. United States.)

 Our difficulty in following the Sobiek lead is that, although Sobiek has never been directly reversed or even criticized, authority to the contrary is both more authoritative and more recent.   We will remember that the start of all this modern consideration of fetal murder was Keeler v. Superior Court, supra, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617.   The Supreme Court there held, as we noted above, that under the common law feticide was not a felony.   An alternative ground for reversal of the conviction, however, was that if feticide were to be declared murder it would impose upon the defendant a retroactive application of change in the law which would violate due process.   The court acknowledged that the defendant's act (beating a pregnant woman to cause miscarriage) constituted a crime (violation of § 274:  procuring a miscarriage);  and also accepted the principle that the defendant's conduct was improper, immoral and not done in the exercise of any constitutionally favored right.  (Keeler, supra, at p. 635, 87 Cal.Rptr. 481, 470 P.2d 617.)   Nevertheless, the court held that the defendant could not be deemed to have “notice that the killing of an unborn but viable fetus would now be murder.”  (Id. at p. 639, 87 Cal.Rptr. 481, 470 P.2d 617.)9

 The more recent authority precluding retroactive application of unexpected changes in the criminal law is In re Baert (1988) 205 Cal.App.3d 514, 252 Cal.Rptr. 418.   This case dealt with the change in the “intent” element in the crime of felony murder charged as a special circumstance to invoke the death penalty.  Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 had required that it be shown that the defendant so charged had intended the killing.   Four years later, in People v. Anderson (1987) 43 Cal.3d 1104, 240 Cal.Rptr. 585, 742 P.2d 1306, the Supreme Court reconsidered the issue and reached the opposite conclusion:  that “intent to kill is not an element of the felony-murder special circumstance” (id. at pp. 1138–1139, 240 Cal.Rptr. 585, 742 P.2d 1306).   The Baert court held that the removal of intent as an element of the crime could not be applied to defendants whose criminal acts took place before Anderson was decided.   The court dealt with our suggested approach, above (which would apply due process concerns only when the act now criminal was previously not a crime), by quoting from Justices Holmes and Marshall as follows:

“As Justice Holmes has said:  ‘Although it is not likely a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.’  (McBoyle v. United States (1931) 283 U.S. 25, 27 [51 S.Ct. 340, 341, 75 L.Ed. 816].)  “ ‘It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated․” ’ ”  (Bouie v. Columbia, supra, 378 U.S. at p. 363 [84 S.Ct. at p. 1707], quoting Chief Justice Marshall in United States v. Wiltberger (1820) 5 Wheat. 76, 96 [5 L.Ed. 37].)  (In re Baert, supra, 205 Cal.App.3d at p. 522, 252 Cal.Rptr. 418.)

We can find no significant distinctions between the facts and issues faced in Keeler and Baert and those presented here.   While it is our firm opinion that Smith and the cases subsequently relying on Smith misconstrued the meaning of the fetal murder statute, there is no question that their statements of its requirements were clear.   Our determination to revisit the issue and state a different rule is not a mere predictable reinterpretation of a statute (see Walker v. Meehan (1987) 194 Cal.App.3d 1290, 1303, 240 Cal.Rptr. 171).   It is, in the words of Bouie, “an unforeseeable judicial enlargement of a criminal statute.”  (Bouie v. City of Columbia, supra, 378 U.S. at p. 353, 84 S.Ct. at p. 1702.)   We therefore are precluded from applying our new interpretation of section 187 to the conduct of defendant Davis.   Accordingly, we proceed to consider the trial court's instruction on the subject of fetal murder.

IV. FETAL MURDER INSTRUCTION.

CALJIC No. 8.10, which appellant requested be given the jury, defines the crime of fetal murder (as relevant to our issue) as follows:

“Every person who unlawfully kills a fetus with malice aforethought is guilty of the crime of murder․

“In order to prove such crime, each of the following elements must be proved:

“1. A viable human fetus was killed;

“․

“A viable human fetus is one who has attained such form and development of organs as to be normally capable of living outside of the uterus.”

The court gave, instead, the following instruction on viability:

“Within the meaning of Penal Code section 187(a), as charged in Count One, a fetus is viable when it has achieved the capability for independent existence;  that is, when it is possible for it to survive the trauma of birth, although with artificial medical aid.”

In giving this form of the instruction the trial court appears to have relied on People v. Apodaca, supra, 76 Cal.App.3d 479, 142 Cal.Rptr. 830, which at page 489, 142 Cal.Rptr. 830 contained the following comment:  “A fetus is viable when it has achieved the capability for independent existence;  as we have indicated, a fetus is deemed viable when it is possible for it to survive the trauma of birth, although with artificial medical aid.”

It is to be noted that this comment was made by the Apodaca court in the course of dealing with the appellant's argument that he was improperly precluded from attempting to establish nonviability of the fetus.   The comment was not directed to the phraseology of an instruction and, we apprehend, was not intended to form the basis for an instruction.   In terms of its dealing with concepts of burden of proof, the comment is internally inconsistent.   The phrase “capability for independent existence” connotes, we infer, a concept of probabilities.   The following phrase, however, “when it is possible for it to survive,” introduces the concept of possibilities.

 One may admit that the CALJIC phraseology “normally capable of living outside of the uterus” is not a model of clarity.   However, the meaning of “normality” suggests, as does the meaning of “capability,” a better than even chance—a probability.   We believe that the phraseology set forth in People v. Smith, supra, 59 Cal.App.3d 751, 129 Cal.Rptr. 498, and restated in CALJIC No. 8.10, is the accurate definition of legal viability, and that the wording from Apodaca and that used by the trial court is ambiguous and misleading.10

 Appellant contends the erroneous jury instruction requiring the jury to find viability on the basis of “possibilities” amounted to a directed verdict on the issue, since in these days of medical miracles it is always “possible” that a fetus, even one ordinarily not capable of living outside the womb, might be saved.   Accordingly, appellant urges that the instruction constituted an unconstitutional shift in the burden of proof of one of the elements of the crime, thus requiring reversal under the standard of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (reversal required unless it can be said that the error was harmless beyond reasonable doubt).   We believe that the appropriate measure of harmless error is that set forth in People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 (that it is reasonably probable a result more favorable to the defendant would have been reached absent the error), because we conceive the erroneous jury instruction simply confused the jury rather than amounted to either a directed verdict or a ruling shifting the burden of proof.   However, we need not reach this issue because we are satisfied that, under either test for prejudice, the instruction was prejudicial.   Under the Watson precedent we are required to examine the entire cause and weigh the evidence bearing on the issue affected by the error.   Having made that examination, we conclude that the question of viability of this fetus was very close.   In fact, the weight of the medical testimony was against the probability of Ms. Flores's fetus being viable.

The prosecution's medical experts reviewed the data relating to the likely age of the fetus and concluded that its chances of survival, statistically, were from 7 percent to 47 percent, depending upon certain assumptions which might vary.   The defense's medical expert testified it was “possible” for the fetus to have survived, but its chances in his opinion were only 2 or 3 percent.   None of the medical experts testified that survival of this particular fetus was “probable.”

We must conclude, therefore, that since the evidence on this vital issue of viability supported the concept of the “possibility” of survival, and the jury was then instructed that viability means “possible survival,” the jury was probably misled.   The jury in our opinion probably would have come to a different conclusion as to viability had it been instructed that viability required a condition permitting “normal” survival outside the womb.   We therefore find that the error in instruction was prejudicial and the conviction of fetal murder must be reversed.

DISPOSITION

 The judgment is affirmed except for the conviction of fetal murder, which is reversed.   The fetal murder count is remanded to the superior court for retrial.   On retrial the court should instruct as to the elements of fetal murder in accordance with CALJIC No. 8.10, because even though we here decide that viability of the fetus is not properly an element of fetal murder under section 187, this defendant is entitled to be tried under the prior uniform rulings of our courts on the subject.11

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   A fetus is “the unborn offspring in the postembryonic period, after major structures have been outlined.”   This period occurs in man “seven or eight weeks after fertilization.”  (The Sloane–Dorland Annotated Medical–Legal Dictionary (1987), p. 281.)

3.   It is the prevailing view that under the common law the killing of a child was not considered homicide unless the child had been “born alive.”  (Keeler v. Superior Court, supra, 2 Cal.3d at p. 625, 87 Cal.Rptr. 481, 470 P.2d 617.)   In the 13th century, Bracton wrote that abortion of a “quick fetus” by a blow or by poison was homicide.  (Roe v. Wade (1973) 410 U.S. 113, 134, fn. 23, 93 S.Ct. 705, 718 fn. 23, 35 L.Ed.2d 147.)   However, the later and prevailing view was that it was a lesser offense.  (Id. at p. 134, 93 S.Ct. at p. 717.)  “Perhaps the most influential statement of the ‘born alive’ rule is that of Coke, in mid–17th century:  ‘If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the childe dyeth in her body, and she is delivered of a dead childe, this is a great misprision [i.e., misdemeanor], and no murder;  but if the childe be born alive and dyeth of the potion, battery, or other cause, this is murder;  for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.’ ”  (Keeler v. Superior Court, supra, 2 Cal.3d at pp. 625–626, 87 Cal.Rptr. 481, fn. omitted.)   By 1850 when California's first murder statute was enacted the common law rule was accepted in the United States and it was held necessary for the child to be born alive in order to support a charge of murder.  (Id. at p. 627, 87 Cal.Rptr. 481.)

4.   In addition, the law was not changed regarding manslaughter.   This result was in accord with views expressed during senate debate that the reason for making a fetus the subject of murder was the defendant's extreme culpability and that this approach was not appropriate for the crime of manslaughter.  (Comment at p. 174.)

5.   The Court recognized:  “[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman ․ and ․ it has still another important and legitimate interest in protecting the potentiality of human life.”  (Id. at p. 162, 93 S.Ct. at p. 731, emphasis in original.)

6.   Professor Parness states in his article:  “By holding that the Fourteenth Amendment does not cover the unborn, the Supreme Court was left with only one constitutionally mandated right, that of the mother's privacy, to be considered along with the legitimate state interest in protecting an unborn's potential life.   The Roe decision, therefore, forbids the state's protection of the unborn's interests only when these interests conflict with the constitutional rights of the prospective parent.   The Court did not rule that the unborn's interests could not be recognized in situations where there was no conflict.”  (Parness, supra, at p. 144.)

7.   Some states criminalize the nonconsensual killing of an unborn “quick” child.  “Quickening,” fetal movement perceptible to the mother, generally occurs between the 12th and 16th week.  (King, supra, at p. 1674.)   In New York, causing the death of an unborn child, which the mother has carried for more than 24 weeks, under circumstances constituting murder is considered first degree manslaughter.  (NY CLS Penal, § 125.00 (1993).)

8.   This holding is similar to the California Supreme Court's 1970 holding in Keeler v. Superior Court, supra, 2 Cal.3d at pp. 629–630, 87 Cal.Rptr. 481, 470 P.2d 617 that the defendant's acts were not considered murder under the common law or the then existing statute.

9.   Sobiek purports to avoid this holding in Keeler by concluding it is dictum since it is an alternative ground for the decision.   Having reached the conclusion that killing a fetus was not murder there was no need to discuss due process consequences which might result had the court gone the other way.   Assuming the proposition was correct, we nevertheless believe we are bound by Supreme Court dictum.   (See 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 768, pp. 735, 736;  Hickman v. Mulder (1976) 58 Cal.App.3d 900, 902, 130 Cal.Rptr. 304.)

10.   It is interesting that in People v. Smith, supra, 188 Cal.App.3d 1495, 234 Cal.Rptr. 142, where the court held that a sua sponte instruction must be given defining viability, the court quoted the definitions contained in both the Apodaca and prior Smith cases, but did not discuss the difference in phraseology or suggest which definition was to be preferred.   In People v. Hamilton, supra, 48 Cal.3d 1142, 259 Cal.Rptr. 701, 774 P.2d 730 the Supreme Court reviewed an instruction very similar to that given in this case, which combined elements of both the Apodaca and the first Smith phraseology, but declined to rule on the accuracy of the instruction because the evidence was that the fetus, under any definition of viability, was clearly viable.

11.   We of course recognize that our pronouncements are not necessarily, or perhaps even ordinarily, the last word on law.   The opinion of one district of our Court of Appeal does not bind other courts of appeal (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 772, p. 740) and probably is not even binding as to subsequent panels of the same division of a Court of Appeal (see People v. Yeats (1977) 66 Cal.App.3d 874, 879, 136 Cal.Rptr. 243).   However, our redefinition of the elements of fetal murder now gives notice to the legal community (including scholarly felons who now by definition are put on notice) that at least one panel of the Court of Appeal believes viability of the fetus not to be an element of the crime.   Fetal murderers in the future, therefore (assuming our case remains in publication, see California Rules of Court, rule 976(c)(2)), cannot claim due process violations in the application of our ruling to their trials (see People v. Carrasco (1988) 202 Cal.App.3d 1078, 1082, 249 Cal.Rptr. 154:  defendant cannot claim ex post facto application of new law when appellate decisions on the subject were previously in conflict).

FROEHLICH, Associate Justice.

KREMER, P.J., and TODD, J., concur.