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Murder Charge Could Be Dismissed Against 3 in Fetus Death : Courts: Prosecutor says there is no evidence linking the fatal drive-by shooting of girl to loss of unborn child.

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A prosecutor conceded Friday there is no evidence to prove that a drive-by shooting caused the death of a 3-month-old fetus, a move that is expected to lead to the dismissal of a murder charge against three men.

The ruling will be made by Van Nuys Municipal Judge Robert L. Swasey. The defense has argued that evidence is sufficient to prove that the shooting of Mona Moore during the May 15, 1993, attack led to the death of her unborn child.

Mona, 15, survived the gunshot wound, but her fetus showed no signs of life when she was brought to the hospital for treatment.

Swasey also will decide next week whether the defendants will be tried in the slaying of a girl who died during the shooting in Panorama City.

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In addition to the death of the fetus, the three men--Robert Harvey, 20, of Pacoima; Brandon Reed, 22, of Sun Valley, and Ronald Ausborne 20, of North Hollywood--are charged with murdering Nikki Foley, 16.

The trio also is charged with attempted murder in the shooting of two other 15-year-old girls who were struck by gunfire.

Deputy Dist. Atty. Franco A. Baratta said he could find no evidence that Mona received prenatal care and there were no records indicating “fetal heart tones” before Mona was shot.

“We do not know that the fetus did not cease to exist prior to the shooting,” said defense attorney Michael V. White.

Baratta did not challenge the point in court.

The judge also could dismiss the murder charge by ruling that prosecutors misstepped when they filed murder charges because the fetus was not yet viable outside the mother’s womb. There are conflicting rulings from appeals courts, and the California Supreme Court is currently weighing the issue of whether the fetus must be viable, which is generally considered to be at least 22 weeks, or if it must only have passed the embryonic stage of seven weeks before murder can be charged.

A decision to throw out the fetus murder charge would spare the defendants the possibility of the death penalty if they were convicted.

After hearing three days of evidence, primarily from a participant in the gang-related shooting who cooperated with authorities, Swasey will decide Thursday if there is enough evidence to warrant a trial on one or both of the murder charges.

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