People v. Davis

Maria Flores, who was between 23 and 25 weeks pregnant, went into a store to cash a check. As Flores exited, Davis (defendant) attempted to rob her at gunpoint. When she refused to give him money, Davis shot her in the chest. Flores received life-saving surgery; however, her fetus was stillborn the next day as a direct result of Flores’s blood loss. Davis was charged with assault, robbery, and murdering Flores’s fetus, pursuant to the state’s penal code § 187(a), which provides that “[m]urder is the unlawful killing of a human being, or a fetus, with malice aforethought.” The statute exempts abortion from its reach. Although § 187(a) does not expressly require a fetus to be viable before the provisions can be applied, the trial court instructed the jury that it must find fetal viability before it can convict for murder. The trial court instructed the jury, based on previous court of appeal decisions, that a fetus is viable when it is possible for it to survive the trauma of birth, although with artificial medical aid. Davis was convicted of murder of a fetus and appealed, arguing that the trial court gave an incorrect viability instruction. The defendant cited United States Supreme Court decisions in the abortion cases to say that § 187(a) cannot apply to a fetus, unless it meets the definition of viability set forth in Roe v. Wade, 410 U.S. 113 (1973): “the point in fetal development when a fetus, if born, would be capable of living normally outside the womb.” The court of appeal ruled against Davis, finding that fetal viability is not a required element of murder under the statute, contrary to prior decisions. However, the court reversed the murder conviction, because applying this new interpretation of § 187(a) to Davis would violate both the Due Process and Ex Post Facto Clauses of the Constitution.