California Supreme Court
The People, Plaintiff and Respondent v. Robert A. Davis, Defendant and Appellant
May 16, 19947 Cal. 4th 797
Summary
The California Supreme Court held that fetal viability is not an element of murder under Penal Code §187(a) and that this holding cannot be applied retroactively to the defendant, so the murder conviction and special circumstance were reversed while the assault and robbery convictions were affirmed. The Court also found the trial‑court’s jury instruction on viability erroneous. Separate opinions dissent and concur on the retroactivity and policy implications.
Holding
- Whether fetal viability is an element of murder under Penal Code §187(a).. Viability is not an element of fetal homicide; a fetus may be murdered regardless of its viability.
- Whether the Court's construction of §187(a) applies retroactively to the defendant.. The new construction does not apply retroactively; applying it would violate due‑process and ex‑post‑facto prohibitions, so the murder conviction is reversed.
Docket S033327
Cited authorities
- Minn. Stat. Ann. § 609.2661-609.2665
- Minn. Stat. Ann. § 609.268(1)
- 22 Harv. J. on Legis. 97
- 77 Mich. L. Rev. 1647
- 21 Val. U. L. Rev. 563
- Minn. Stat. § 609.2661
- Ind. Code Ann. § 35-42-1-6
- Minn. Stat. Ann. §§ 609.266