People v. Davis

Davis (defendant) shot Flores, then 23-25 weeks pregnant, during an attempted robbery, causing her fetus to be stillborn from resulting blood loss; Davis was convicted of murdering the fetus under a statute criminalizing the unlawful killing of a human being or a fetus with malice aforethought (excluding abortion), after the trial court, following then-existing case law, instructed the jury it must find fetal viability, defined as capability of surviving birth with artificial medical aid. Davis appealed, and the court of appeal agreed viability was not actually a statutory element but reversed the conviction anyway on due process and ex post facto grounds.