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When Life Starts Tested in Gang Slaying Case : Crime: Witness identifies friend as gunman in death of teen-age girl and 3-month-old fetus.

SPECIAL TO THE TIMES

In an unusual case dealing with the issue of when life begins, a man testified Friday that an alleged gang member fired the shots that killed a 16-year-old girl and the 3-month-old fetus of another teen-age victim.

Prosecutors have alleged there was more than one murder, and that the three adult defendants in the case are eligible for the death penalty, even though the fetus was too young to have survived outside the mother’s womb.

At Friday’s preliminary hearing for Robert Harvey, 20, one of the accused, witness Kenyon Brown reluctantly identified his friend Harvey as the gunman in a drive-by shooting that took place May 15 in Panorama City.

“Now, who fired the shots from the car?” asked Deputy Dist. Atty. Franco A. Baratta.

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“It was K.P.,” Brown said quietly, using Harvey’s gang moniker to identify him as the gunman.

After testifying, Brown, who admitted he was in the Nissan Maxima during the shooting, hung his head so low that he could not be seen by anyone present in Van Nuys Municipal Court.

Also charged in the shooting death of Nikki Foley and the 12- to 16-week-old fetus of Mona Moore, 15, are Brandon Reed, 22, and Ronald Ausborne, 20. Moore and two other teen-age girls were wounded but survived the attack.

Police said the four girls were talking with members of a local gang in the 9300 block of Sylmar Avenue when members of a North Hollywood-based gang opened fire from a car.

Because prosecutors have alleged that there was more than one murder, all three will be eligible for the death penalty if convicted. Brown, who was 17 at the time of the shooting, also faces murder charges in Juvenile Court, but cannot be sentenced to death.

The case is unique due to the age of the fetus. An appeals court in Los Angeles ruled in 1977 that a slain fetus must be viable outside the womb--now widely considered to be at the age of 22 weeks--for a murder to have occurred.

But a San Diego appeals court ruled in May that a fetus must only have progressed beyond the embryonic stage of seven or eight weeks for its death to be considered a murder.

The judges in San Diego said their ruling was consistent with Roe vs. Wade, the landmark U.S. Supreme Court ruling that gave a woman the right to abort an unborn child until it is 13 weeks old. They said their ruling dealt with a case in which a woman did not have a right to choose the fate of the fetus.

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“In our view, Roe’s teachings do not apply to a situation where a third party kills a fetus without a mother’s consent,” the ruling stated.

The California Supreme Court heard oral arguments two weeks ago in an attempt to decide which of the two cases will become the prevailing law in the state. A ruling is expected in May.

Brown testified against Harvey Friday as a result of a deal he struck with prosecutors. If it is found that he testified truthfully, murder charges will be dropped and he will be allowed to plead guilty to being an accessory to the crime, Baratta told Judge Robert L. Swasey.

The prosecutor said he would not demand any prison time when Brown is sentenced.

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The preliminary hearing got off to a late start Friday afternoon because Baratta’s car was both burglarized and ticketed while he was attending a morning meeting in Downtown Los Angeles. It was concluded after Brown answered only half a dozen questions because defense attorneys wanted his testimony videotaped.

Swasey then delayed the hearing until next Friday and joked, “We’re off to such a flying start.”

Harvey, Reed and Ausborne are being held without bail in County Jail. Brown has been released from custody but is wearing an electronic bracelet being monitored by the Probation Department, Baratta said.


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