California prosecutors file murder charges in more fentanyl deaths

Just about every state in America has cracked down on fentanyl distribution, increasing arrests and prison sentences. But few places are as aggressive as Riverside County, California, in prosecuting people who supply deadly strains of fentanyl.

Since late 2021, Riverside County District Attorney Mike Hestrin has charged 34 suspected fentanyl suppliers with murder and is believed to be the first prosecutor in California to secure a guilty verdict from a jury in a fentanyl-related murder case.

“People are being devastated by this drug,” said Mr. Hestrin, who was a district attorney in Riverside County, a vast area east of Los Angeles, for nine years.

Riverside County has a reputation for aggressively prosecuting crimes (a “prosecutor’s paradise,” one local attorney calls it). And like Riverside, some other counties — such as San Diego and Placer, near Sacramento — that have also filed murder charges against fentanyl suppliers have significant numbers of conservative-leaning voters who prefer more punitive approaches to crime.

But even in liberal bastion San Francisco, the district attorney’s office has been preparing to investigate fentanyl deaths as possible homicides, which would mark a sea change in the city’s approach to drug-related crimes.

The prosecution of street dealers is seen by some critics as a misguided return to the aggressive approach of the 1990s, which failed to curb drug use and expanded the number of state prisons to house low-level distributors and people addicted to drugs.

“Using the same strategy we used in the 1990s and suggesting it will be appropriate and effective in 2024 is not the argument of any thinking person,” said Cristine Soto DeBerry, founder of Prosecutors Alliance, which advocates a progressive approach to criminal justice. criminal justice in California.

Moreover, such prosecutions in California rest on unclear legal ground, experts say, because prosecutors have worked around the fact that California has no law specifically allowing fentanyl deaths to be charged as murder.

But even amid this legal uncertainty, such prosecutions are gaining momentum across California, reflecting the public’s fears about fentanyl, one of the leading causes of death in the United States.

Federal prosecutors can charge someone with distributing fentanyl causing death, which carries a mandatory minimum sentence of 20 years in prison. But federal authorities don’t have the ability to pursue every street dealer, leaving state and local officials to come up with their own responses to what has become a nationwide public health crisis.

Many of the fentanyl cases prosecuted in California involved people who thought they were purchasing painkillers such as Oxycodone or Percocet, but ended up receiving pills containing fentanyl. Illegal drugs such as cocaine are also mixed with fentanyl, which is cheap to produce and highly addictive.

Prosecutors say if they can prove a suspected dealer knew the drugs contained fentanyl and could be deadly, they could charge the person with murder.

But unlike many other states, California does not have a law classifying fentanyl deaths as homicide. So in filing murder charges, prosecutors got creative and borrowed a legal theory used to prosecute drunk drivers.

It’s called the Watson Murder Rule, named after a California drunk driving case dating back more than forty years in which courts ruled that if a person knowingly ignores the dangers of drunk driving and kills someone, it can be a crime to murder.

In Riverside County, people who prosecutors say knew the drugs they sold or dispensed were deadly and supplied them anyway have been charged under the same theory of second-degree murder.

Prosecutors are looking at text messages and other communications to show that the person who supplied the fentanyl was aware of the risks. But this evidence can be difficult to find because the person does not always express that knowledge in writing.

Defense attorneys say this definition of murder is overbroad and unconstitutional because the California Legislature has not created a law classifying fentanyl deaths as murder.

“Is it murder if you sell someone a pack of cigarettes, because you know that cigarettes can kill?” said Michael Duncan, a Riverside County attorney representing a man sentenced in November to 15 years to life in prison for supplying fentanyl to a 26-year-old woman, Kelsey King.

A jury found Mr. Duncan’s client, Vicente David Romero, guilty of first-degree murder. Prosecutors said this was the first time a jury in California convicted someone of a fentanyl-related murder charge.

Prosecutors said Mr. Romero split a pill he knew contained fentanyl with Ms. King. Mr Duncan said his client had sought help for Ms King, which was not behavior consistent with murder.

Mr. Romero’s conviction is being appealed.

“The power to define the crime of murder belongs to the legislature,” Mr. Duncan said. “Not in court and not in Mr. Hestrin’s office.”

Of the 34 cases in which murder charges have been filed in connection with fentanyl deaths in Riverside County, Mr. Romero’s is the only one that has resulted in a murder conviction by a jury. In another case, a jury found the suspect guilty of involuntary manslaughter. Six other cases have resulted in plea agreements reducing the charge to voluntary manslaughter. There are still 24 cases pending.

In San Francisco, fentanyl is a volatile issue in a city that has historically taken a progressive approach to illegal drugs, emphasizing treatment and rehabilitation over prison.

District Attorney Brooke Jenkins, who was appointed in 2022 after her progressive predecessor Chesa Boudin was recalled by voters frustrated by crime in San Francisco, is taking a tougher line against dealers.

In an interview, she said not every overdose death — there were about 800 last year — could be investigated as a potential homicide because of limited resources and lack of evidence.

But Ms. Jenkins said filing murder charges, even in a few cases, would send the message that “we will not let you get away with killing our most vulnerable.”

Ms. Jenkins said a task force of prosecutors and police officers is being trained in building a murder case and that she did not expect them to be ready to file charges until this summer.

In San Diego County, District Attorney Summer Stephan said she had filed homicide charges sparingly — against a total of four people since 2017 — compared to lesser charges in the roughly 500 fentanyl sales cases her office handled last year.

Even if the dealer is not charged, Ms. Stephan said, she wants to be able to provide the families of the deceased with as much information as possible.

“These families feel like their souls have been ripped from their chests,” she said. “They want to know what happened.”

Parents whose children died from fentanyl are a driving force behind new laws and intensified prosecutions, just as the parents of drunk driving victims decades ago pushed the nation to crack down on alcohol-related traffic deaths.

Mr. Hestrin, the Riverside County prosecutor, said his decision to pursue a murder charge was prompted by his conversations with a local parent, Matt Capelouto, whose 20-year-old daughter, Alexandra, died in December 2019 from fentanyl. In college, she took half a pill that she thought was Oxycodone. But it was a counterfeit pill containing a lethal dose of fentanyl.

Mr. Capelouto, who owns a printing company in the Riverside County city of Temecula, said he was initially told by investigators that his daughter’s death appeared to be an accidental overdose and that no foul play was suspected.

Mr. Capelouto requested a meeting with Mr. Hestrin.

“He asked me, ‘Why isn’t my daughter’s death murder?'” Mr. Hestrin recalled. “And my answer was, ‘I don’t have a good answer.’”

Mr. Capelouto is now president of an advocacy group, DrugInducedHomicide.org, that pushes states to crack down on street-level drug trafficking.

Mr. Hestrin’s investigators could not find enough evidence to show that the person who sold Ms. Capelouto the pills knew they contained fentanyl and that the pills were fatal — elements necessary to prove second-degree murder.

The dealer was eventually charged in federal court, where penalties for selling fentanyl are harsh. In 2023, he pleaded guilty to possession of fentanyl with intent to deliver and was sentenced to nine years in prison. As part of the plea deal, he admitted knowing the pills contained fentanyl or an “other federally controlled substance.”

“We cannot get ahead of this situation until we can hold drug dealers accountable,” Mr. Capelouto said.

Kirsten Noyes reporting contributed.