## Facts

- Robert and Teresa Keeler were divorced; Teresa later became pregnant by another man, unbeknownst to Robert.
- On a mountain road in Amador County, Robert confronted Teresa, blocked her vehicle, and upon seeing she was pregnant stated he would “stomp it out.”
- Robert assaulted Teresa by forcing her from the car, driving his knee into her abdomen, and striking her face until she lost consciousness.
- Medical examination showed serious injuries to Teresa and extensive bruising to her abdomen.
- A cesarean section delivered a stillborn fetus with a severely fractured skull and cerebral hemorrhage; the cause of death was force applied to Teresa’s abdomen.
- Medical testimony indicated the fetus was viable and had shown movement before the assault.
- The district attorney charged Robert with murder under Penal Code § 187, defined then as “the unlawful killing of a human being, with malice aforethought.”
- Robert moved to set aside the murder charge, arguing a fetus was not a “human being” within § 187; the trial court denied the motion, and he sought a writ of prohibition to halt trial on that count.

## Issues

1. Whether an unborn but viable fetus is a “human being” within the meaning of Penal Code § 187, permitting a murder prosecution for intentionally causing fetal death in utero.
2. Whether a court may expand the statutory term “human being” to include a viable fetus consistent with the legality principle, separation of powers, and due process fair-warning limits.

## Decision

- The California Supreme Court granted a writ of prohibition barring further proceedings on the murder count.
- The court held that, as then written, Penal Code § 187 did not include an unborn (even viable) fetus within “human being.”
- The court reasoned that the Legislature in 1850 adopted the common-law meaning of “human being,” which excluded an unborn fetus.
- The court relied on Penal Code § 6 (no common-law crimes) and held defining new crimes or expanding criminal liability is a legislative function.
- The court held that retroactively applying any newly broadened construction would deny due process by failing to provide fair warning and would be akin to ex post facto lawmaking by judicial decision.
- Other non-murder charges were unaffected.

## Legal Principles

- Penal statutes are interpreted according to legislative intent at enactment; absent legislative inclusion, “human being” in a murder statute may exclude an unborn fetus.
- Under the legality principle and statutory prohibition on common-law crimes, courts may not create or materially expand criminal offenses through interpretation.
- Due process requires fair notice of criminal liability; courts may not apply an unforeseeable expansion of a criminal statute to past conduct.
- Ambiguities in penal statutes are strictly construed in favor of the accused; enlarging homicide liability is for the Legislature, not the judiciary.

## Conclusion

The court concluded that California’s murder statute, as then written, did not reach the killing of a viable fetus in utero, and it prohibited prosecution for murder on that theory because judicial expansion of “human being” would exceed judicial authority and, if applied to prior conduct, would violate due process fair-warning limits.


Keeler v. Superior Court, 2 Cal. 3d 619 (Cal. 1970)