Appellants were convicted of the murder of the victim and her fetus. The victim was 16 weeks pregnant with a fetus which died as a result of her death. At trial, appellant sought to introduce the testimony of the autopsy doctor, who concluded that there had been an infection where the placenta attached to the uterine wall which would have made it unlikely that the fetus would have survived to term in utero. The trial court excluded the evidence, and on appeal, appellant argued that the exclusion was error because the murder statute does not apply where a fetus would not have survived until birth even absent criminal intervention. The appellate court found no error, holding that just as the murder statute protects humans with fatal conditions and have little time to live, it protects fetuses suffering from fatal conditions. However, the court found merit in appellant’s argument that to be convicted of the implied malice murder of the fetus, the defendants had to have known that the victim was pregnant. The shooter cannot have subjectively appreciated the risk to fetal life as a consequence of shooting the woman, unless he had reason to believe the woman was pregnant. Here, the victim was only 16 or 17 weeks pregnant and the autopsy physician could not tell she was pregnant by looking at her. Further, the prosecutor told the jury that knowledge was unnecessary. Therefore, it was reasonably likely that the court’s instructions on implied malice, coupled with the prosecutor’s erroneous statements, misled the jurors into thinking they could convict on both murders if they found malice only as to the woman, and not the fetus.