Drive-by Attack Seen as ‘Fetus Murder’ Test Case : Law: Appeals court ruling prompts filing of charge in shooting. Abortion rights activists worry about the implications.

The drive-by shooting seemed like countless others in gun-crazy Los Angeles: Three carloads of armed youths sped past a group of teen-agers in the San Fernando Valley and showered them with bullets, killing a 16-year-old and wounding three friends.

But because one of the injured was pregnant and miscarried, the Panorama City shooting may become a test case of whether a fetus can be a murder victim--even if it is too young to survive outside the womb.

Last week, prosecutors charged five alleged gang members with “fetus murder” for the miscarriage, citing a recent appeals court ruling from San Diego that says even a non-viable fetus--one that cannot sustain life on its own--is entitled to the state’s protection against murder. The ruling rejects prevailing case law, which has held that a fetus must be viable to be a subject of California’s homicide statute.

The case is the first of its kind in Los Angeles County and could be the first application of the new ruling statewide, a spokeswoman for the district attorney’s office said. Although prosecutors maintain that their only concern is convicting alleged gang members, the opinion from the 4th District Court of Appeal has been swept up in the abortion debate.

Both anti-abortion and abortion-rights forces agree that the May 4 ruling in People vs. Davis is a narrow interpretation of the state’s murder law and does not affect abortion rights.

But both sides also said the ruling paves the way for thinking about a fetus as a separate being entitled to legal protection--and, in turn, for regulating the behavior of pregnant women.

“It’s a recognition that what resides in the womb is a person,” said attorney Anne Kindt, executive director of the Right to Life League of Southern California.

“It has to raise the question in people’s minds: If we’re prosecuting a third party for killing an unborn child, it’s ironic (that) a woman can choose an abortion for a child at that same date and we can’t call it murder.”

UCLA law professor Christine Littleton said it is that sort of interpretation that makes the Davis ruling troubling to abortion rights advocates.

“The more you engage in this fantasy--and it is a fantasy--of thinking of the fetus as a separate person, then it’s possible to envision all kinds of horrendous encroachments on the woman,” said Littleton, chairwoman of the board of the Southern California Women’s Law Center.

The ruling stems from a 1991 armed robbery in San Diego in which a pregnant woman was shot in the chest after she refused to give up her welfare money.

Maria Flores survived the attack in a check-cashing store, but her 25-week-old fetus did not. Robert A. Davis, 21, was convicted of murder and sentenced to life in prison without the possibility of parole.

Davis’ attorneys tried to overturn the conviction by challenging how the judge legally defined a fetus’s viability in his jury instructions. Medical experts generally consider a fetus viable after six months, or about 24 weeks.

But the 4th District Court of Appeal ruled that the question of viability was irrelevant because the state’s homicide law defines murder as “the killing with malice or forethought of a human being or fetus.”

“In order for a fetus to be the subject of the murder statute, it need only be shown that it has progressed beyond the embryo stage of seven to eight weeks,” Associate Justice Charles Froehlich Jr. wrote in the opinion. Presiding Justice Daniel J. Kremer and Associate Justice William L. Todd Jr. concurred.

The San Diego decision conflicts with a 1977 ruling from the 2nd District Court of Appeal in Los Angeles, which held that a fetus must be viable to be considered a murder victim. As a result, the Panorama City case probably will end up before the state Supreme Court, attorneys said.

At least one defense attorney in the case said last week that he will challenge the fetus murder charge against his client by invoking the 1977 ruling. “It’s a setup” by prosecutors to bring the issue before the California Supreme Court, said Deputy Public Defender Dror Toister, who is representing Maurice Campbell, 19, of Panorama City.

So far, three other men and a 17-year-old have been charged in the May 15 drive-by shooting, which may have involved 10 people. Police said the participants are gang members who opened fire in the neighborhood of a rival gang.

In addition to Campbell, the arrested adults have been identified as Brandon Reed, 21, of Sun Valley; Anthony Dwayne Rose, 19, of North Hollywood, and Ronald Ausborne, 19, whose place of residence was not available. All were being held without bail in County Jail and face charges that include murder, fetus murder and attempted murder.

The shooting left Nikki Foley, described by police as a straight-A student at Reseda High School, dead of multiple gunshot wounds. She and her companions were innocent victims caught as they stood outside an apartment building on a Saturday night, authorities said.

The three wounded teen-agers included 15-year-old Mona Moore, who was between three and four months pregnant. Struck in the back by a bullet, she miscarried 10 hours later, said Deputy District Atty. Michael Genelin, who heads the district attorney’s hard-core gang division.

Genelin and Chief Assistant Dist. Atty. Sandy Buttitta said their staff had no anti-abortion agenda in filing the fetus murder charges. If anything, Buttitta said, “I look at this filing as another women’s rights issue--that this young woman had a right to carry her child to term if that was her choice.”

By adding fetus murder to the homicide charge, prosecutors have created a “special circumstances” case of multiple murder counts that will enable them to seek increased sentences if they win convictions--either the death penalty or life in prison without parole.

Los Angeles prosecutors said they may also apply the San Diego ruling to the case of Sherri Foreman, 29, whose 13-week fetus died with her during a fatal stabbing outside an automatic teller in Sherman Oaks. A convicted bank robber, Robert Glen Jones, 42, has been charged with murder in connection with the March 30 attack.

And Van Nuys Detective Phil Morritt said he would like to see the ruling applied in a spousal-abuse case from last year, in which a beating triggered the miscarriage of a 20-week-old fetus.

“As far as I was concerned, he was a murderer,” Morritt said of the Van Nuys man accused of kicking his pregnant girlfriend in the stomach.

The common thread in all the cases is that the pregnancies ended because of violent attacks, not through the choice of the mother. That is why the San Diego ruling should have no effect on abortion rights, Froehlich said in a phone interview.

“It doesn’t have anything to do with abortion,” Froehlich said. “What it has to do with is the violent killing of a fetus by an independent third party without the consent of the mother.”

Although several legal experts agreed, some abortion rights advocates said they still feared the ruling’s philosophical implications.

“Anytime you have a court giving sanction to the notion that a fetus is a viable human being, it gives ammunition to those who would exalt the rights of an incipient human being over that of a viable, living human woman,” said Abby J. Leibman, executive director of the Women’s Law Center.

Anti-abortion activists said they are encouraged by the ruling.

Operation Rescue spokeswoman Sue Finn said: “It’s schizophrenic to say that when some unborn children are killed it’s murder and someone may go to jail for that, but when other unborn children are killed simply because somebody didn’t want them, that it isn’t murder.”