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Name: People v. Taylor
Case #: C042165
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/17/2004
Subsequent History: Rev. den. 9/29/04

Appellant punched his pregnant girlfriend six times in the stomach during her seventh month of pregnancy. The baby was born alive the next day, but died a month later from necrotizing intercolitis caused by the destruction of the small bowel and by his premature birth. Appellant was convicted of second degree murder of the child. On appeal, he argued that he could not properly be convicted of the murder of a human being based upon an act which occurred before the human being came into existence. The appellate court rejected that argument, concluding that the law looks to the instant of death, not to when the defendant did the act which ultimately caused the death. Because the infant was a human being when he died, the conviction for murder was proper. Further, there was no error where the trial court instructed the jury that malice was a killing resulting from an intentional act, the natural consequences of which are dangerous to human life. The instruction did not have to refer to fetal life because the infant was a human being when he died. Also, there was sufficient evidence to support the conclusion that appellant’s conduct caused the death. Although the assault was on appellant’s girlfriend, the baby was the ultimate victim of the injury because the premature delivery caused by the assault rendered him vulnerable to the condition which killed him. It was also not error for the trial court to have failed to instruct, sua sponte, on the crime of murder of a fetus. Murder of a fetus is not a lesser included offense of murder of a human being.