Keeler v. Superior Court

Supreme Court of California
2 Cal. 3d 619, 470 P.2d 617, 87 Cal. Rptr. 481 (1970)

ELI5:

Rule of Law:

An unborn but viable fetus is not a "human being" within the meaning of California's murder statute (Penal Code § 187), as the legislature intended the term to apply only to a person who has been born alive.

Facts:

Robert Keeler and Teresa Keeler obtained an interlocutory decree of divorce after 16 years of marriage.
Unbeknownst to Robert Keeler, Teresa Keeler was pregnant by another man, Ernest Vogt.
On February 23, 1969, Robert Keeler encountered Teresa Keeler on a remote road, blocked her vehicle, and confronted her about her pregnancy.
Upon visually confirming she was pregnant, Keeler became enraged and stated, "I'm going to stomp it out of you."
Keeler then pushed Teresa Keeler against her car, kneed her in the abdomen, and struck her multiple times in the face.
A Caesarian section was performed, revealing that the fetus's head was severely fractured; it was delivered stillborn.
Medical experts determined the fetus was at a stage of viability, between 31 and 36 weeks old, with a 75% to 96% chance of survival if born prematurely on that date.
An autopsy concluded the cause of the fetus's death was a skull fracture with cerebral hemorrhaging resulting from the force applied to Teresa Keeler's abdomen.

Procedural Posture:

An information was filed in the Superior Court of Amador County charging Robert Keeler with murder (Count I), willful infliction of traumatic injury upon his wife (Count II), and assault (Count III).
Keeler filed a motion to set aside the information for lack of probable cause pursuant to Penal Code § 995.
The trial court denied Keeler's motion.
Keeler then petitioned the California Supreme Court for a writ of prohibition to restrain the trial court from proceeding with the murder charge in Count I.

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Issue:

Does the unlawful killing of a viable but unborn fetus constitute murder under California Penal Code § 187, which defines the crime as the unlawful killing of a "human being"?

Opinions:

Majority - Mosk, J.

No, the unlawful killing of a viable but unborn fetus does not constitute murder under California Penal Code § 187. When the legislature enacted the murder statute in 1850 and codified it in 1872, it adopted the settled common law definition of a "human being," which required a victim of homicide to have been born alive. The court's reasoning rests on three pillars: 1) Statutory Interpretation: The term "human being" must be interpreted based on the legislative intent at the time of enactment. The common law at that time, as established by authorities like Coke and Blackstone, uniformly held that a child had to be born alive to be the subject of homicide. 2) Separation of Powers: For the court to expand the definition of murder to include a fetus, however viable, would be to create a new crime, a power vested exclusively in the Legislature. Such judicial legislation is improper, as courts cannot punish acts that are not statutorily proscribed, even if they are of a kindred character to enumerated crimes. 3) Due Process: Applying a new, unforeseeable judicial construction of the statute to Keeler would violate due process by failing to provide fair warning that his conduct constituted murder. Such a retroactive enlargement of a criminal statute operates like an unconstitutional ex post facto law.

Dissenting - Burke, J.

Yes, the unlawful killing of a viable fetus should be considered murder under the statute. The majority's reliance on archaic common law is misplaced, as Penal Code § 4 directs courts to construe statutes according to the 'fair import of their terms' to promote justice, not to be bound by centuries-old definitions. The term 'human being' is a fluid concept that should adapt to modern medical science, which recognizes that a viable fetus has a high probability of independent life. The common law 'born alive' rule was based on an outdated medical presumption that a fetus would be born dead, a presumption now proven false. Furthermore, the defendant had fair warning; strong dicta in People v. Chavez (1947) indicated that the courts were moving toward a viability standard, making this interpretation foreseeable. To exclude a viable fetus from the definition of a 'human being' defies reason, logic, and common sense.

Analysis:

This landmark decision solidified the 'born alive' rule in California homicide law, firmly rejecting the opportunity to judicially update the definition of 'human being' to a modern, medically-based viability standard. The case underscores the principle of legislative supremacy in defining criminal offenses and highlights the constitutional due process barrier against unforeseeable judicial enlargement of criminal statutes. The court's refusal to act prompted a direct legislative response; the California Legislature amended Penal Code § 187 in 1970 to explicitly include the killing of a fetus, creating a new precedent that separated California from the traditional common law rule.

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