California Penal Code section 12022.9 - Interpretation
In People v. Dennis (1998) 17 Cal.4th 468, the only published case thus far to address Penal Code section 12022.9, the court noted:
"As an enhancement, section 12022.9 does not represent an alternative to a charge of fetal murder in violation of section 187. Instead, it imposes an additional punishment for committing, or attempting to commit, a felony in a manner that intentionally injures a pregnant woman and results in termination of her pregnancy. The enhancement relates to the particular injury a defendant inflicts on a woman in committing the substantive crime." (Dennis, supra, 17 Cal.4th at p. 501.)
Dennis, supra, 17 Cal.4th 468, teaches that the point of the enhancement is to punish the defendant for injuring a woman in a particular manner with a particular result, not for the particular harm that comes to the fetus she is carrying.
Section 12022.9, former subdivision (a), in effect at the time of trial, provided: "Any person who, during the commission or attempted commission of a felony, knows or reasonably should know that the victim is pregnant, and who, with intent to inflict injury, and without the consent of the woman, personally inflicts injury upon a pregnant woman that results in the termination of the pregnancy shall, in addition and consecutive to the punishment prescribed by the felony or attempted felony of which the person has been convicted, be punished by an additional term of five years in the state prison. The additional term provided in this subdivision shall not be imposed unless the fact of that injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact. Nothing in this subdivision shall be construed as affecting the applicability of subdivision (a) of Section 187 of the Penal Code."
The statute was later amended to delete former subdivision (b) and renumbered without subdivisions, but not materially changed. (Stats. 2002, ch. 126, 7.)