Return to CALJIC Part 5-8 – Contents
F 8.10 n1 Prosecution Burden To Prove No Irreversible Cessation Of Circulatory, Respiratory And Brain Functions (PC 187).
An infant who is indisputably alive during the birth process is a human being within the meaning of the homicide statutes. (People v. Flores (92) 3 CA4th 200, 208 [4 CR2d 120].) However, it is the prosecution’s burden to establish that the infant was alive. To do so it must be established that there was (1) no irreversible cessation of circulatory and respiratory functions and (2) no irreversible cessation of all functions of the entire brain, including the brain stem. (Id. at 210; HS 7180(a).) While the lack of evidence of some form of brain activity does not establish that the fetus/infant was born dead, it does not establish that it was born alive either. Under such circumstances the prosecution has failed to meet its burden. (Flores 3 CA4th at 211; see also People v. Dennis (98) 17 C4th 468, 507 [71 CR2d 680] citing Flores for the proposition that both disjunctive prongs of HS 7180(a) must be absent to find that the fetus was dead.)
Research Notes: See Annotation, Homicide based on killing of unborn child, 40 ALR3d 444 and Later Case Service.
[Research Note: See FORECITE BIBLIO 8.00, et al.]
F 8.10 n2 Sua Sponte Instruction On Legal Definition Of Death (PC 187).
In common usage, a person is killed only when he or she is totally lifeless, i.e., when both heart and brain have ceased to operate. (See Barber v. Superior Court (83) 147 CA3d 1006, 1013 [195 CR 484] [noting that death has historically been defined to require cessation of heart as well as respiratory functions].) But because California law now defines death as cessation of brain or cardiac activity (see FORECITE F 8.10 n1), the term “killing” has a technical meaning different from the common usage upon which the trial court must instruct sua sponte when appropriate. For example, when the acts which are relied upon to prove the defendant’s mental state (e.g., premeditation, deliberation, torture, malice) may have occurred after the cessation of the heart or respiratory system then there is a danger that the jury will not make a proper determination of concurrence of act and intent without an adequate definition of “death.” [See Brief Bank # B-534 for additional briefing on this issue.]
[Research Note: See FORECITE BIBLIO 8.00, et al.]
F 8.10 n3 Accessory To Murder As Lesser Related Offense (PC 187).
In People v. White (86) 185 CA3d 822, 829 [231 CR 569] the court held that the crime of accessory to murder is closely related to murder. (Id. at 29-30.) (But see People v. Jones (93) 14 CA4th 1252, 1258 [18 CR2d 673] [past killing, lying and coverup do not support accessory instruction when relevant only to show a consciousness of guilt].)
[Research Note: See FORECITE BIBLIO 8.00, et al.]
F 8.10 n4 Gross Vehicular Manslaughter Is Not LIO Of Murder (PC 191.5).
(See People v. Sanchez (2001) 24 C4th 983 [103 CR2d 698].)
[Research Note: See FORECITE BIBLIO 8.00, et al.]
F 8.10 n5 Fetus Murder: Manslaughter Is Not A Lesser Offense (PC 187).
There is no crime of manslaughter in the commission of feticide. Hence, the traditional concepts of heat of passion and imperfect defense are not available to reduce the killing of a fetus from murder to manslaughter. (See People v. Carlson (74) 37 CA3d 349, 357 [112 CR 321]; see also, People v. Brown 95) 35 CA4th 1585 [42 CR2d 155]; People v. Dennis (98) 17 C4th 468, 509 [71 CR2d 680] [rejecting argument that due process and need for reliable fact finding in capital cases requires instruction on manslaughter as a lesser offense of fetus murder].)
[Research Note: See FORECITE BIBLIO 8.00, et al.]
F 8.10 n6 Admissibility Of Prior Spousal Abuse By Defendant.
RESEARCH NOTES: See annotation, Admissibility of evidence of prior physical acts of spousal abuse committed by defendant accused of murdering spouse or former spouse, 24 ALR 5th 465 and Later Case Service.
F 8.10 n7 Witness Murder Special: No Requirement That Victim Be An Eyewitness To A Prior Crime.
(This entry has been renumbered. See FORECITE F 8.81.10 n6.)
F 8.10 n8 Murder And Manslaughter: Rebuttable Presumption.
SUBSEQUENT HISTORY: In the July 1998 Pocket Part, the CALJIC Committee added CJ 8.01 [“Presumption Of Lawful Killing (PC 194).]
Prior to 1997, to constitute murder or manslaughter, it was required that the victim die within three years and a day after the cause of death was administered. (PC 194).
Effective 1/1/97, PC 194 was amended to provide that it is no longer necessary that the victim die within a specified time, but if the death occurs beyond three years and a day, there is a rebuttable presumption that the killing was not criminal. The prosecution bears the burden of overcoming the presumption. (PC 194; 1996 Stats., ch 580 (AB 2144).)
F 8.10 n9 Fetal Murder: PC 12022.9 Enhancement Is Not Lesser Offense.
People v. Dennis (98) 17 C4th 468 [71 CR2d 680] held that PC 12022.9 is an enhancement, not a substantive offense. (See People v. Morris (88) 46 C3d 1, 16 [249 CR 119]; see also People v. Wims (95) 10 C4th 293, 304 [41 CR2d 241]). Accordingly, it would be improper to instruct upon PC 12022.9 as a lesser included or lesser related offense to fetal murder under PC 187(a).
F 8.10 n10 Mental Disease Or Defect: Post Partum Psychosis.
(See FORECITE F 3.32 n3.)
F 8.10 n11 Murder: GBI Enhancement Improper.
A great bodily injury enhancement may not be added to a conviction for murder. (See FORECITE F 17.19. n3.)
F 8.10 n12 Murder: Whether Fetus Is Human Being Element -– Determined At Time Of Death.
(See People v. Taylor (2004) 119 CA4th 628, 637 [the law looks to the instant of death, not to when defendant did the act that ultimately caused death].)
F 8.10 n13 Fetal Murder: Statute Applies Even If The Fetus Would Not Have Survived Due To Fatal Medical Condition.
(See People v. Valdez (2005) 126 CA4th 575.)
F 8.10a
Murder: Definition Of Viable Fetus
(PC 187)
*** POST-DAVIS CASES: In People v. Davis (94) 7 C4th 797, 810 [30 CR2d 50], the Supreme Court concluded that viability is not an element of fetal murder under PC 187(a) and no instruction on viability is necessary for cases based on acts which occurred after the Davis (5/16/94) opinion.
*** PRE-DAVIS CASES: Davis held that ex post facto principles require instruction on viability for cases based on acts which predated the Davis opinion. In such cases, CJ 8.10 (5th ed bound volume) should be given. Additionally, the following FORECITE language should be added to CJ 8.10 at the end of ¶ 4 defining “viable fetus”:
… without artificial medical support.
Points and Authorities
The 1970 Amendment to PC 187 extending murder to fetuses contained no viability element. However, the appellate courts have inferred a viability limitation in light of subsequent abortion cases, which recognized a constitutional right to terminate a pregnancy before the fetus becomes viable. (E.g., People v. Smith (76) 59 CA3d 751, 758-59 [129 CR 498].) Hence, it is error for the trial court to fail to instruct the jury as to the legal meaning of the term viable. (People v. Smith (87) 188 CA3d 1495, 1514 [234 CR 142].)
CJ 8.10 defines a viable fetus as one which “has attained such form and development of organs as to be normally capable of living outside of the uterus.” However, this definition leaves unresolved for the jury the question of whether or not they should consider the use of artificial medical support in determining whether or not the fetus could survive.
In Smith 59 CA3d at 756-58, and People v. Apodaca (78) 76 CA3d 479, 487-90 [142 CR 830], the courts referred to the language of the United States Supreme Court in Roe v. Wade (73) 410 US 113, 160 [35 LEd2d 147], that viability means being capable of surviving the trauma of birth with the aid of normal medical science.
However, the question of viability also includes a determination as to the likelihood of sustained survival after birth. In this regard, by analogy to the abortion cases, viability requires a reasonable likelihood of sustained survival outside the womb with or without artificial support. (See Colautti v. Franklin (1979) 439 US 379, 388 [58 LEd2d 596].)
The jury should be instructed upon this further definition of viability. The failure to so instruct raises a danger that the jury will not have found all necessary elements of the charge in contravention of established federal constitutional rights of trial by jury and due process. (6th & 14th Amendments.) (See People v. Hamilton (89) 48 C3d 1142, 1171-72 [259 CR 701], [recognizing the issue but not addressing it under the facts of that case]; see also, Ackley, Criminal Defense Instructions, Instruction M-51.2, p. 206.6; but see People v. Henderson (90) 225 CA3d 1129, 1157-58 [275 CR 837] [distinguishing the definition of viability vis a vis abortion with the definition of viability for purposes of PC 187].)
RESEARCH NOTES
See Annotation, Homicide based on killing of unborn child, 40 ALR3d 444 and Later Case Service.
F 8.10b Murder: Killing Of Another Human Being.
*Modify to CJ 8.10, paragraph 2, sentence 1 to provide as follows [added language is capitalized; deleted language is between <<>>]:
Every person who unlawfully kills ANOTHER <<a>> [human being] …
Points and Authorities
“Homicide is the killing of a human being by another human being.” (People v. Antick (75) 15 C3d 79, 87 [123 CR 475] [internal quotation marks and citations omitted].) Hence, homicide does not include the killing of one’s self. (People v. Teroganesian (95) 31 CA4th 1534, 1537 [37 CR2d 489].) While this issue may often not be material in the typical homicide prosecution, it could be at issue in an attempted homicide case or in a case in which the defendant is tried under a vicarious liability theory. In any event, correct instruction upon all elements of the charge is constitutionally mandated. Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 8.10c
Murder: Murder Of Fetus — Defendant Must Have
Actual Knowledge Of The Existence Of The Fetus
(PC 187)
*Add to CJ 8.10:
To establish that the defendant acted with malice toward the fetus, the prosecution must proof beyond a reasonable doubt that, when the defendant [allegedly] committed the acts which [allegedly] caused the death of the fetus, [he] [she] knew ________(insert name of mother of the fetus) was pregnant.
Points and Authorities
People v. Taylor (2004) 32 C4th 863 held that the defendant may be held liable for the second degree implied malice murder of the fetus even if the defendant did not know the victim was pregnant.
However, because implied malice requires actual, subjective appreciation of the danger to life (see People v. Watson (81) 30 C3d 290, 296-97; People v. Cameron (94) 30 CA4th 591, 600), it follows that the defendant must have actual, subjective knowledge of the existence of the fetus. (See e.g., Bryan v. U.S. (98) 524 US 184, 193 [141 LEd2d 197; 118 SCt 1939] [possession of unregistered machine guns statute requires proof that the defendant knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machine gun]; Staples v. U.S (94) 511 US 600, 602 [128 LEd2d 608; 114 SCt 1793] [federal statute making it unlawful to possess an unregistered machine gun properly construed as requiring proof that defendant knew the characteristics of the firearm that he possessed met the statutory definition]; People v. Colantuono (94) 7 C4th 206, 219 [willful commission of a violent act requires knowledge that an unlawful touching is substantially certain to result].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Fiore v. White (2001) 531 US 225, 228-29 [148 LEd2d 629; 121 SCt 712]; Carella v. California (89) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; Neder v. U.S. (99) 527 US 1 [144 LEd2d 35; 119 SCt 1827]; U.S. v. Gaudin (95) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; In re Winship (70) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; Jackson v. Virginia (79) 443 US 307, 339 [61 LEd2d 560; 99 SCt 2781]; Lambert v. California (57) 355 US 225 [2 LEd2d 228; 78 SCt 240]; Conde v. Henry (9th Cir. 1999) 198 F3d 734, 740-41; U.S. v. Uchimura (9th Cir. 1997) 107 F3d 1321; Harmon v. Marshall (9th Cir. 1995) 57 F3d 763; see also generally, FORECITE PG VII(C).]
