## Facts

- Robert A. Davis robbed Maria Flores outside a check-cashing store by pulling a gun and demanding $378 from her purse.
- Flores, 23–25 weeks pregnant and accompanied by her 20-month-old son, refused to surrender the purse; Davis shot her in the chest and fled.
- Flores survived after emergency surgery; physicians repaired uterine injuries but did not attempt further obstetrical intervention due to fetal immaturity.
- The next day the fetus was stillborn; medical evidence attributed the death to Flores’s blood loss, low blood pressure, and shock.
- Expert testimony conflicted on whether the fetus could survive outside the womb; the prosecution estimated a materially higher chance than the defense expert.
- Davis was charged with robbery-related offenses and murder of a fetus under Penal Code § 187(a), with a robbery-murder special circumstance allegation.
- Consistent with then-existing intermediate appellate authority, the trial court instructed that fetal murder required proof the fetus was “viable,” defining viability as possible survival after birth with medical aid.
- Davis was convicted of, among other offenses, murder of a fetus.

## Issues

1. Whether Penal Code § 187(a)’s reference to “a fetus” requires proof the fetus was viable to support a murder conviction.
2. If viability is not required, whether applying that interpretation to Davis would violate due process limits on unforeseeable judicial enlargement of criminal liability (ex post facto-type concerns).

## Decision

- The California Supreme Court held that viability is not an element of murder of a fetus under Penal Code § 187(a).
- The court declined to import a viability threshold from abortion decisions, reasoning those cases address state regulation of abortion rather than third-party violence.
- The court held its viability-free construction could not be applied to Davis because, at the time of the offense, existing California appellate decisions had required viability.
- The court affirmed the Court of Appeal’s judgment reversing Davis’s fetal-murder conviction on constitutional fair-warning grounds.

## Legal Principles

- Penal Code § 187(a) criminalizes the unlawful killing of “a fetus” with malice aforethought without an implied viability requirement, subject to the statute’s express abortion-related exemption.
- Abortion jurisprudence viability concepts do not control interpretation of a homicide statute addressing third-party criminal acts against a pregnant person.
- Due process prohibits retroactive application of an unforeseeable judicial construction that expands criminal liability beyond what prior authority would have made reasonably apparent at the time of the conduct.

## Conclusion

The court construed Penal Code § 187(a) to cover the killing of a fetus regardless of viability, but held that using this construction to sustain Davis’s conviction would deny fair warning; his fetal-murder conviction therefore could not stand even though the interpretation governs future cases.


People v. Davis, 7 Cal. 4th 797, 30 Cal. Rptr. 2d 50 (Cal. 1994)