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Oakland lawyer Joseph Shipp gave it a good try Wednesday but appeared to fall far short of persuading the California Supreme Court that there can be no conviction for fetal murder if a killer had no idea the mother-to-be was pregnant. All seven justices seemed unwilling to accept Shipp’s argument that state legislators did not intend that the crime require an alleged murderer to have a conscious disregard of risk to an indiscernible fetus. “Other states actually include the knowledge requirement. California does not,” Justice Janice Rogers Brown said during oral arguments in San Francisco. “Are you saying we should require or impute such knowledge even though it’s not there?” Shipp, a solo practitioner, was arguing on behalf of Harold Taylor, a decorated Vietnam veteran convicted of shooting to death ex-girlfriend Patty Fansler in her Mendocino County home in 1999. He also was convicted of the second-degree murder of the 11- to 13-week-old fetus that neither he nor Fansler apparently knew existed. San Francisco’s 1st District Court of Appeal upheld the Fansler murder conviction but reversed the fetal-murder charge. That could reduce Taylor’s sentence from 65 years to life to 40 years to life. “The fetal-murder charge does not stand up to the implied malice theory advanced in this case,” 1st District Justice Timothy Reardon wrote in 2002. “The evidence supports the physical component, but not the mental component. There is not an iota of evidence that [Taylor] knew his conduct endangered fetal life and acted with disregard of that fetal life.” Based on Wednesday’s arguments, that ruling isn’t likely to stand, as the state Supreme Court justices didn’t appear to see any difference in Taylor’s indirect murder of Fansler’s fetus and the accidental killing of a third party at a murder scene. Justice Marvin Baxter questioned why the murder of Fansler’s undiscovered fetus would be any different from that of a child accidentally shot to death while hidden under a blanket during the murder of his mother. Or of a person in an adjoining apartment killed by a stray bullet penetrating a wall. Shipp agreed those probably would constitute murder. “But I still think that’s different,” he argued, because conscious disregard comes into play when there is the likelihood of other people being around, but not when there is no reason to suspect a fetus exists. “Even though,” Justice Ming Chin interjected, “the defendant doesn’t know the child is under the blanket?” When asked that same question earlier by Baxter, San Francisco-based Deputy Attorney General Ross Moody said there would be no difference. “It is,” he said, “a classic unknown victim scenario.” Chief Justice Ronald George spiced things up by asking Moody whether the mother-to-be’s physical appearance could play a factor — the inference being that there might be no way for the murderer to realize the existence of a fetus. What if the woman appeared too young or too old to be of childbearing age, George asked. What if she was masculine and appeared to be a man? “It would make no difference,” Moody answered. “Nor should it make any difference.” He analogized to a drunken driver hitting another car and killing two people without knowing if they were women or pregnant. “If they hit a car with a woman who is pregnant,” he said, “why is that not two counts of murder?” Shipp wanted the court to make a distinction between an “unknowable victim” — someone hidden under a cover, or in another apartment — and an undetectable fetal life. That seemed to baffle the justices, who kept coming back for further explanation. “What’s the difference between an unknowable victim and what you call undetectable life,” Justice Brown asked. “How is that different?” Chief Justice George seemed troubled by Shipp’s assertion that courts should decide on a case-by-case basis whether the shooter knew other lives were in danger. He mentioned shooting into an apartment building as compared to shooting in a remote desert or into a comparatively empty street at 3 in the morning. “Would it depend,” he asked, “on all these factual nuances in every situation?” After the hearing, Shipp batted away questions about the impact of the court’s imminent ruling on other fetal murder cases, including that of Scott Peterson, the Modesto, Calif., man charged with the murder of wife Laci and unborn son Conner in 2002. “This is not Scott Peterson,” he said, “where you knew good and well a woman was pregnant.” The ruling in People v. Taylor, S112443, is due within 90 days.

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