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Injury Limitation on Spouse Abuse Let Stand

March 17, 1994| From Associated Press

SAN FRANCISCO — An attack on a spouse that causes pain but no detectable injury is not enough for a felony conviction, according to a ruling left intact Wednesday by the state Supreme Court.

The court unanimously denied a hearing on a prosecution appeal of a lower court ruling that reduced a San Bernardino County man's conviction of felony spousal abuse to battery, a misdemeanor punishable by up to six months in jail.

Jose Luis Abrego was convicted of the September, 1991, beating of his estranged wife, Ester Abrego, in the town of Lenwood.

According to the 4th District Court of Appeal, Jose Abrego went to his wife's home in the early morning hours, called her names and slapped or punched her five times in the face and head. He also kicked a man who was in the home, threw a rock through a window and later threatened to return and resume the attack, the court said.

Ester Abrego told an investigating officer that she felt pain and tenderness where she had been hit. The officer saw no injuries, and Ester Abrego sought no medical treatment. At her husband's trial, she testified she had not felt pain.

Normally, a beating can be charged as a felony, punishable by a state prison sentence, only if it causes serious injury. Otherwise, the charge is misdemeanor battery. But an attack on a spouse or a person living in an intimate relationship can be charged as a felony if any injury is inflicted.

Jose Abrego was convicted of spousal abuse by a jury and sentenced to three years in prison by Superior Court Judge Rufus Yent. But the appeals court ruled last December that there was insufficient evidence that Ester Abrego had been injured.

The spousal abuse law requires proof of "a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." Neither pain nor emotional trauma fit that definition, the court said.

The court ordered Abrego resentenced for battery.

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