|Ultrasound: 23 weeks|
According to the CA Penal Code (Section 187, Subdivision (a)):On March 1, 1991, Maria Flores, who was between 23 and 25 weeks pregnant, and her 20-month-old son, Hector, went to a check-cashing store to cash her welfare check. As Flores left the store, defendant pulled a gun from the waistband of his pants and demanded the money ($378) in her purse. When she refused to hand over the purse, defendant shot her in the chest. Flores dropped Hector as she fell to the floor and defendant fled the scene.Flores underwent surgery to save her life. Although doctors sutured small holes in the uterine wall to prevent further bleeding, no further obstetrical surgery was undertaken because of the immaturity of the fetus. The next day, the fetus was stillborn as a direct result of its mother's blood loss, low blood pressure and state of shock. Defendant was soon apprehended and charged with assaulting and robbing Flores, as well as murdering her fetus. The [7 Cal.4th 801] prosecution charged a special circumstance of robbery-murder. (§ 190.2, subd. (a).)
"Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."The jury convicted the defendant of assault with a firearm, robbery, and murder of a fetus. The defendant was sentenced to life without parole, plus five years for firearm use.
The defendant appealed, arguing that it was unlikely the fetus would have been viable, and citing Roe v. Wade and Planned Parenthood v. Casey for definitions of fetal viability: the point in development when a fetus, if born, would be capable of living normally outside the womb.
Both the Court of Appeal and the CA Supreme Court found that the CA Penal Code does not include viability as an element of fetal murder.
Many pro-choicers assert that in order for a human being to be a "person," he or she must be viable. Does this imply that, by CA law, you can be charged with the murder of non-persons?