Special Law Put to the Test in 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.

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.

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.

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.