High Court Backs Death Penalty for Murder of Fetus

Times Staff Writer

The state Supreme Court, while reversing a death sentence, unanimously ruled Monday for the first time that murdering a fetus can result in capital punishment.

The court also issued opinions affirming a death sentence in a San Diego case and upholding the bulk of a third case involving the murder of a 15-year-old girl in Riverside.

In the fetus case, Jerry Bunyard, 38, of Stockton was convicted of a multiple murder for the Nov. 1, 1979, deaths of his wife, Elaine, who was nine months pregnant, and her unborn daughter.

The case was one of at least two before the high court involving the deaths of pregnant women and their fetuses.

Special Circumstance

The justices affirmed the jury's finding that Bunyard was guilty of the special circumstance of multiple murder and thus eligible for the state's two most severe punishments--life in prison without parole or the death penalty.

In an opinion by Justice John Arguelles, the court rejected Bunyard's contention that the jury did not specifically find that he intended to kill the unborn child. Arguelles said the panel must have reached that conclusion given "the unique relationship between a pregnant woman and her unborn fetus."

To carry out the crime, Bunyard hired Earlin Popham, who pleaded guilty to first-degree murder and testified that Bunyard offered to pay him $1,000 to kill his wife and make it look like suicide. Bunyard complained that she had refused to accept his terms for a divorce and that the unborn child was not his.

Bunyard was not charged with murder-for-hire, but rather faced the death penalty for multiple murder. Murder of a fetus has been against California law since 1973.

Although the death penalty statute does not specifically mention the murder of a fetus, the court said "it is clear that the multiple murder special circumstance is applicable to the killing by a single act of a pregnant woman and her viable fetus."

"The fact that the victim murdered is an unborn child does not render (Bunyard) less culpable, or the crime less severe, in light of the Legislature's determination that viable fetuses receive the same protection under the murder statute as persons," Arguelles said.

The court rejected Bunyard's other claims that the imposition of the death penalty for killing a fetus amounted to cruel and unusual punishment, and that it was out of proportion to what other states do. Laws of only three other states provide that the killer of a fetus can get the death penalty.

"The baby was going to be born that day or the next day, within days," said Deputy Atty. Gen. Joel Carey, who argued the case. "It was a full-term baby. . . . The statute is very clear. Murder is unlawful killing of a human being."

Improper Instruction

The court reversed Bunyard's death sentence on other grounds, finding that jurors were given an improper instruction that was found to be invalid in a 1984 high court ruling.

In the instruction, jurors were told that if they sentenced Bunyard to life without parole, the alternative to a death sentence, the governor could commute the sentence to life with the possibility of parole.

That jury instruction was declared invalid by the court in 1984 because, the court reasoned, it meant jurors would speculate on a governor's future actions and might tilt toward a death verdict.

In the two other death penalty cases, the court unanimously:

- Told the trial judge to correct an oversight in the case of Albert G. Brown and to consider Brown's request for a reduced sentence, something that can be done without retrying the case. Brown was convicted of the Oct. 28, 1980, rape and murder of a 15-year-old girl in Riverside. Later that day, he taunted the girl's parents by calling them and saying she would never be seen alive and giving them directions to an orange grove where he had left the body.

- Upheld the death sentence of Michael Allen Williams, 25, for the robbery and murder of a 21-year-old sailor in the San Diego suburb of National City in September, 1981.

The court has ruled on 33 death sentence appeals this year and has upheld 26 death sentences.

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