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Man Convicted of First-Degree Murder of Fetus

December 9, 1991

SAN DIEGO (AP) _ A man has been convicted of first-degree murder in the death of a fetus whose mother was wounded during a robbery.

Robert Anthony Davis, 21, was convicted Friday, after the jury deliberated more than two days. He also was convicted of assault with a deadly weapon and armed robbery.

The fetus was born dead hours after Maria Trinidad Flores, 21, was shot in the chest March 1 at a check-cashing establishment. She also was robbed of $387.

The fetus was not directly wounded but died as a result of Flores’ shock and blood loss, according to testimony.

″If it had not been for the defendant, she would have been loving and holding this child right now,″ said Deputy District Attorney Peter J. Cross.

Davis said the shooting was accidental.

Attorneys for the defense and prosecution said the defense appeal of the case could change California law.

Although there have been other first-degree murder convictions for the death of a fetus in California, Deputy District Attorney Peter J. Cross said he hoped this case would help broaden court interpretation of the law.

California law allows murder convictions for the unlawful killing of a fetus, which is defined as any unborn child 12 weeks or older, Cross said. Abortion is exempted from the law.

″Our appellate courts in California, in the few circumstances where it’s arisen, have attached a viability consideration to the murder statute,″ Cross said. ″It’s been our opinion all along that that should not be there.″

Cross said he hoped the appeals court would set a precedent by ruling that the prosecution did not have to show the fetus was legally viable before the shooting.

Jurors in the case were asked to consider whether the fetus was viable under a broad definition of the term.

Judge Michael D. Wellington defined a viable fetus in his instructions to the jury as one where a fetus achieved the capability of independent existence and where it was ″possible″ for the fetus to survive the trauma of birth to live at least 28 days.

″The use of the word ‘possible’ was the key word,″ said Barbara Clayton, jury foreman. ″When phrased that way, we were not left with a lot of room to maneuver.″

Medical experts put the fetus’ age at between 23 to 25 weeks. Medical experts called by both sides disagreed about whether the fetus could have ″possibly″ survived birth and its first 28 days.

Defense attorney Jeffrey Thoma said there was little question that Davis was guilty of armed robbery and assault with a deadly weapon, but said he would appeal based on the judge’s jury instructions.

Davis of San Diego faces a sentence of life without the possibility of parole. He was ordered held without bail until his sentencing, scheduled for Jan. 7.

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