Special Law Put to Test in Case of Fetus Death : Courts: Prosecutors say assault on woman killed her unborn baby. They’re evoking a rarely used statute to demand a punishment that fits the crime.

In the darkness of her one-room flat, Valerie Morales’ dreams are haunted by memories of the baby boy she always wanted and almost had.

“Most of the time,” she said, “I try not to think about it. I just try to forget, but sometimes I’ll be lying down, nothing to do, the kids are all asleep. I’ll just start thinking about it and getting real sad.”

Since late August, the dream has come “over and over” again, Morales said, and it is always the same.

In the beginning, she is being beaten. “In the end it would be me dying, I was still pregnant, and the baby dying,” Morales said.

Her former boyfriend, Jose Alfredo Velasco, 25, faces charges for allegedly beating Morales on Aug. 20--when she was four months pregnant--and intentionally causing the death of her fetus, which died a week after the beating.

Because Morales was only 17 to 18 weeks pregnant, murder charges cannot be filed. So prosecutors say they have turned to a little-used “fetus death” statute to make sure that, in a case like this, the punishment fits the crime.

Attorneys say the law--which increases the penalty for crimes in which a fetus is killed--has been used so rarely because its stringency makes it difficult to obtain a conviction. But they feel the Morales case provides an opportunity to put the law to the test.

Instituted in 1985, the law came about as a result of a similar case in 1983, when a 14-year-old girl, who also was four months pregnant, was stabbed and her fetus killed. Because the girl was not further along in her pregnancy, murder charges could not be filed. Under California law, unless a fetus is considered viable--able to survive outside the womb--murder charges cannot be brought. Doctors say a fetus is usually considered viable after 24 weeks, though the age can vary.

Since the murder statute did not apply, the girl’s attacker was convicted of assault with a deadly weapon and was sentenced to six years in prison. No specific charge was filed for the death of the fetus.

A bill sponsored by Assemblyman Tom McClintock (R-Thousand Oaks) changed that.

The statute allows for a special allegation that adds an extra five years to a felony sentence if a crime committed against a pregnant woman results in the loss of a non-viable fetus.

McClintock said he sponsored the measure because of the “frustration” prosecutors felt at not being able to enter a charge with a stiffer penalty in the 1983 case.

“The purpose of the bill was to give prosecutors the ability to seek an enhancement when a crime is committed that warrants more than a charge of great bodily injury,” he said.

Velasco, who has pleaded not guilty and is free on $12,000 bail, faces a charge of assault with a deadly weapon causing great bodily injury in the beating of Morales, plus the special allegation made possible by the statute change. A trial date will be set at a hearing scheduled for Jan. 17.

Morales testified at an earlier court hearing that Velasco, the father of her two surviving children, both girls, punched and kicked her repeatedly in the stomach as she lay on the floor in a neighbor’s house.

In an interview and in testimony, Morales alleged that the beating was prompted by an argument between Velasco and her current boyfriend--the father of her unborn child. Morales said Velasco had discovered she was pregnant and wanted her to have an abortion. She refused.

When she intervened in the fight between the two men, she said, Velasco turned on her.

“We were arguing about me not wanting to be with him and about me being pregnant from somebody else,” she testified.

But the argument soon turned into a physical altercation, she said.

“I broke the window to his car, then he started chasing me,” Morales said in the interview. “He chased me to my next-door neighbor’s house, and that’s where he got me on the couch and he held my arms like this,” she said, placing her arms behind her back as if she were about to be handcuffed.

During the preliminary hearing, Morales told of “trying to get away from” Velasco by running to the kitchen of her neighbor’s house. In a separate interview, Morales said she was repeatedly beaten and kicked and that, at one point during the ordeal, Velasco told her that “I wasn’t going to have a baby from somebody else.”

A week after the alleged beating, Morales was rushed to California Hospital in Southwest Los Angeles with hemorrhaging and severe pain in the abdomen.

“They told me that the baby was dead and that it was from him beating me up,” she said, noting that she had told doctors of the alleged beating. “They made me have the baby like I was having one naturally. I went through that for one whole day. I just felt bad, then they told me it was a boy. I wanted a boy.”

If found guilty in the case, Velasco faces nine to 12 years in prison, said Deputy Dist. Atty. David Campbell. Without the special allegation, he would face between four and seven years for assault with a deadly weapon and causing great bodily injury.

Prosecutors were hesitant to discuss the Velasco case in detail. But several noted that it is one of the few cases to proceed this far since the law was passed.

“I think an important factor is that it’s only been around four years and there’s not been that many opportunities to file . . .” Campbell said of the law. “I assume that if the factors were there (in previous cases) we’d file.”

But Deputy Dist. Atty. Norm Shapiro, who works in the Complaints Division of the Los Angeles County district attorney’s office, noted that the law has been rarely used because of its limitations.

For the special allegation to be applied, the suspect had to have known that the woman was pregnant and then intentionally caused the death of the fetus. Shapiro said it is especially difficult to prove that a person knew a woman was pregnant and meant to kill the fetus. He noted that many women do not appear to be pregnant early in their pregnancy.

Whether Velasco knew Morales was pregnant and intended to cause her to lose her baby will be key factors during the trial, Velasco’s defense attorney has indicated.

Another difficulty in this type of case, attorneys say, is proving that the crime committed against the mother was actually the cause of the fetus’s death.

Carol Sobel, an attorney with the American Civil Liberties Union in Los Angeles who has done a great deal of work in reproductive rights cases, also noted that it is extremely difficult--even in cases in which a woman is beaten--to prove the cause of a fetus’s death given the number of spontaneous fetal abortions resulting from inadequate prenatal care or other health factors, such as venereal disease.

A doctor’s testimony is a key factor in these cases, but doctors are often hesitant to testify to the cause of a fetus’s death, said one official in the district attorney’s office.

“We would have to have a doctor’s report say to us that the termination of this pregnancy was a direct result of this beating,” the official said.

Dr. Tina Koopersmith, who attended Morales on the day she went into the hospital, testified that the beating appeared to cause the baby’s death, but that she could not say for certain because she did not perform the autopsy. She also said she could not rule out other possible causes of death.

Velasco’s attorney, Public Defender Stanley Shimotsu, also has declined to discuss the case in detail. But during the earlier court hearing, he said there may be “other medical causes that brought about the termination (of the pregnancy) that superseded the injuries caused by my client.”

Under cross-examination, Morales testified that about five to seven weeks before the beating she was “jumped” by four girls who beat her for about five minutes as she crouched on the sidewalk. Shimotsu also indicated that the delay of one week between the alleged beating and the death of the fetus also will be addressed in the trial.

Under cross-examination, Koopersmith testified Morales may have endangered the life of the baby by not going to the hospital sooner.

In an interview after the hearing, Shimotsu said, “This (case) is different in terms of its complexity,” adding his investigation is continuing.