Second Degree Murder

My wife, whose forensic science education included some law, pointed out major flaws in the first version of this post. It has been rewritten. – Funky]

187. (a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
(b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:
(1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.
(2) The act was committed by a holder of a physician’s and surgeon’ s certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.
(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.
(c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.

188. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.

189. All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.

Scott Peterson was found guilty of murdering his unborn son, Conner. At first, I thought this might have had the potential to give a big boost to the pro-life movement. Though not yet born, Conner was deemed to be a person. His life was ended in an unnatural way by another person. That unnatural cause of death was deemed to be murder. In the face of this verdict, how much longer can late-term abortions continue?

At least, that’s how my reasoning went. However, after looking at the California penal code, it’s clear that no personhood was necessarily attributed to Conner. Furthermore, the inconsistency of charging murder for the intentional death of one fetus and legally protecting the intentional death of another is mind-boggling.

Might Peterson try to appeal based on that inconsistency? Might he challenge the constitutionality of code 187 of the California penal code? If he appeals and wins, how far back might that set the pro-life movement? Even he doesn’t, how long can Laci’s Law withstand attacks on its constitutionality, considering how quickly the Partial-Birth Abortion Ban was struck down?

On a side note, I think the jury members failed to properly perform their duties in full. If Peterson is guilty of maliciously murdering his wife and was fully aware of her being very pregnant, how could the death of the child not be considered to have been brought about with malice aforethought? Conner was found outside of the womb. Either he died violently when Laci died, died from lack of “life support” after Laci’s death, or was born alive and died by exposure or drowning. It’s not like Scott tried in any way to save the child. He had to have known the child would die as the result of killing the mother. That’s wanton disregard, i.e malice aforethought.