AG opposes Kings County DA charging female meth addict with murder in her stillborn child’s death

California Attorney General Xavier Becerra filed an amicus brief Friday supporting a writ of prohibition petition to end the prosecution of a Kings County woman accused of murdering her stillborn child by taking methamphetamine.

It's the first time in attorney Roger T. Nuttall's nearly five-decade career that the attorney general filed a brief supporting his defense petition, the attorney, with the Law Office of Nuttall & Coleman, said in an interview Friday.

The 16-page Department of Justice brief argues that Kings County Superior Court Judge Robert S. Burns erred in denying a demurrer which contended that Penal Code Section 187 -- California's murder statute -- doesn't apply to a woman's actions or omissions that may result in the death of her fetus. The application of that statute by prosecutors in this case, wrote Karli Eisenberg, supervising deputy attorney general, "would be unconstitutional." Becker v. Superior Court of Kings County, F081341 (Cal. App. 5th Filed July 2, 2020).

Kings County District Attorney Keith L. Fagundes said Friday he never had the chance to brief Becerra's office on "how this law applies to the specific facts of the case" before the amicus brief was filed.

"It is a sad day when the attorney general takes a position without knowing the complete facts of a case," Fagundes said in an email. "Fortunately, at this stage of the proceedings his opinion is not binding on the appellate court."

In October, Fagundes charged Chelsea Becker, 25, with one count of murder of a human fetus after she delivered a stillborn child. Prosecutors alleged Becker's methamphetamine use during pregnancy caused the child's death, constituting murder "with malice aforethought," court records show. People v. Becker, 19CM-5304 (Kings, Super. Ct., filed Oct. 31, 2019).

Unable to pay bail, Becker has remained in custody since she was arrested on Nov. 5.

In denying Becker's demurrer in June, Burns concluded Penal Code Section 187 does not "exclude its application to the mother of a fetus," according to court records. He reasoned Becker could be prosecuted for murder because the death of her child was not a result of her exercising her constitutional right to terminate her pregnancy through medical means.

Becerra said he agrees with Becker and her counsel that the "text, purpose and legislative history" of that statute prove the contrary -- that a woman cannot be prosecuted for murder as a result of her pregnancy loss under any circumstance.

"Section 187 of the California Penal Code was intended to protect pregnant women from harm, not charge them with murder," Becerra said in a statement Friday. "We will work to end the prosecution and imprisonment of Ms. Becker so we can focus on applying this law to those who put the lives of pregnant women in danger."

In 1970, the Legislature amended the state's murder law in response to a California Supreme Court ruling that held the law doesn't apply to fetuses. Keeler v. Superior Court, 2 Cal. 3d 619 (1970). The amended law stipulated that a pregnant woman could not be charged with murder when the cause of the fetus' death was "aided, abetted or consented to by the mother."

Because Becker consented to consume methamphetamine during her pregnancy, she should not be eligible to face murder charges, her counsel, and now Becerra, argue.

"The superior court's contrary interpretation would lead to absurd -- and constitutionally questionable -- results," Eisenberg wrote. "It would subject all women who suffer a pregnancy loss to the threat of criminal investigation and possible prosecution for murder."

A response to the petition for prohibition has not yet been filed.