Appellant killed an ex-girlfriend, resulting also in the death of the 11 to 13 week old fetus she was carrying. Appellant did not know she was pregnant, nor was her pregnancy apparent. He was charged with two counts of first degree murder. On the prosecutions motion, the court changed the count relating to the fetus from first to second degree, and instructed the jury on implied malice. The appellate court here reversed as to the fetal murder count. There was no evidence whatsoever that appellant knew his conduct endangered fetal life and acted with disregard to that life. Therefore a second degree murder conviction could not stand. It was not error for the court to have admitted statements of the victim describing an earlier incident of tailgating by appellant as domestic violence propensity evidence pursuant to Evidence Code section 1109. The evidence was highly relevant, underscoring appellants anger and obsession toward the victim, and it refuted appellants defense that the shooting was accidental. Further, section 1109 is not unconstitutional.