Gerken v. Fair Political Practices Commission

Penal Code section 187, subdivision (a), provides that "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (All further statutory references are to the Penal Code unless otherwise indicated.) In this case, we consider and reject the argument that viability of a fetus is an element of fetal murder under the statute. As will appear, however, we also conclude that this holding should not apply to defendant herein. Accordingly, we will affirm the judgment of the Court of Appeal.