Appellate Court Rejects Murder Charge for San Jose Fentanyl Supplier
An 18-month-old toddler’s blood contained nearly 25 times the lethal amount of fentanyl for a child her size when San Jose police found her body covered by a rug on August 12, 2023. In a ruling issued this week, the 6th District Court of Appeal decided that Santa Clara County prosecutors overreached when they filed a murder charge against 34-year-old Phillip Michael Ortega, a reputed drug dealer linked to the fatal overdose, mercurynews.com reported.
The unanimous three-judge panel rejected the county District Attorney’s Office theory that Ortega was just as liable as the child’s parents for the toddler finding and ingesting fentanyl scattered around the Willow Glen-area home where they lived. The higher court ordered the county Superior Court to vacate Ortega’s murder charge. However, he still faces felony child endangerment and fentanyl-selling charges in connection with the case.
Appellate Ruling Creates Precedent for Related Fentanyl Case
The appellate court’s published ruling establishes a legal precedent with powerful implications for a related case involving the May 2023 fentanyl overdose death of 3-month-old Phoenix Castro. In that case, Ortega was also charged with murder alongside the infant’s father, David Anthony Castro, under a similar premise that Ortega served as the drug supplier.
In the toddler Winter Rayo’s case, prosecutors argued that Ortega was liable for second-degree murder under an implied malice theory. They asserted that because Ortega supplied the drugs to parents Derek Vaughn Rayo and Kelly Gene Richardson—and knew about their addictions and reckless habits—he bore responsibility for the child’s death. Rayo and Richardson were convicted of murder and child endangerment in May, but Ortega’s case was severed from theirs.
Writing for the unanimous panel, Justice Adrienne Grover explained that the dealer’s actions were too remote to support an implied malice charge. Despite clear evidence of petitioner’s conscious disregard for human life, we conclude as a matter of law that his own actions in providing drugs to the parents were too remote from the parents’ life-endangering conduct to support prosecuting petitioner for implied malice murder,
Grover wrote, using the term petitioner to refer to Ortega.
Defense Arguments and Causation in Drug Supply Cases
The justices sided with defense attorney Renee Hessling, who argued that Ortega’s liability ended once the parents took possession of the drugs and that he owed no parental duty to the child. The ruling states that Ortega’s sale of fentanyl may have contributed to the death, but the outcome was not a natural consequence because the chain of causation required an intervening act or omission by the adults responsible for the toddler’s safety.
The appellate panel also noted that Ortega’s general awareness that the parents sometimes smoked drugs around the child or were careless with substances was insufficient to prove he knew a lethal amount of fentanyl would be left within her reach on the day she died. Hessling praised the decision, stating that government overreach and overcharging constitute an injustice of their own.
San Jose police detectives reported that the parents waited at least 12 hours before calling 911 after discovering the child was not breathing, telling investigators they wanted to grieve before police separated them. Crime-scene photos showed drugs loosely contained in garage bins and white pills within a few feet of the toddler’s body. Rayo and Richardson remain in county jail custody awaiting a December sentencing hearing, while the District Attorney’s Office consults with the state Attorney General’s Office about potentially requesting a review by the California Supreme Court.
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