What is the test for the death penalty in a murder case involving a pregnant woman and her unborn baby?

Defendant's argument lacks merit. The heart of defendant's argument seems to be that since at common law feticide was not even a felony (Keeler v. Superior Court (1970) 2 Cal.3d 619, 625-626, 87 Cal.Rptr. 481, 470 P.2d 617), and could not make a defendant eligible for the death penalty, and most jurisdictions do not consider a fetus a person for the purposes of the murder statute or for imposition of the death penalty, application of the multiple-murder special circumstance to the present situation--where the victims are a pregnant woman and her viable fetus--is constitutionally infirm. While defendant's argument is provocative, it does [45 Cal.3d 1240] not establish cruel or unusual punishment under the relevant criteria formulated by either this court or our high court.