Mothers causing fetuses’ deaths through drugs lead to murder charges

Defense attorneys have asked a state appellate court to reopen the case of a Kings County woman sentenced to 11 years in prison on a plea deal after the district attorney alleged her methamphetamine use killed her full-term baby.

Her attorneys argued California's murder law doesn't apply to pregnant women whose use of drugs results in stillbirth.

The case is the second in three years in which a woman who admitted to using methamphetamine during pregnancy that resulted in her baby's death was charged with murder by Kings County District Attorney Keith L. Fagundes, according to court filings.

California Attorney General Xavier Becerra, the American Civil Liberties Union and some defense attorneys have argued that such charges assume a near-limitless level of liability that would subject women who suffer the loss of a pregnancy to unconstitutional criminal prosecutions.

But according to Philip W. Esbenshade, executive assistant district attorney for Kings County, the state's murder statute doesn't exempt women from being charged with murder when their reckless, deliberate acts cause the death of their fetus.

"These cases are not about abortion nor women's reproductive rights," Esbenshade said Friday. "These cases are about a person who did specific acts that resulted in the death of a viable fetus."

Mary G. McNamara of Swanson & McNamara LLP filed a motion in the 5th District Court of Appeal last week asking the court to reopen the case of Adora Perez, whom Fagundes charged with murder in 2018.

Perez told investigators after she delivered her baby stillborn in 2017 that she had used methamphetamine and marijuana just days before she gave birth, according to court records. Medical examiners surmised the cause of the baby's death was habitual methamphetamine use based on the child's condition at delivery, records show.

Perez pleaded guilty to voluntary manslaughter and was sentenced to the maximum for the charge. Her conviction was affirmed on appeal last year. People v. Perez, F077851 (Cal. App. 5th, filed March 26, 2019).

In her motion to reopen the case, McNamara argued prosecutors have unconstitutionally stretched the plain language of California's murder statute -- Penal Code Section 187 -- in charging Perez with murder.

"Ms. Perez was prosecuted for a crime that doesn't exist and is now imprisoned based on a plea that shouldn't have been accepted," McNamara argued in a statement.

Esbenshade said prosecutors had not yet seen the motion so it would be too soon to comment on it.

In August, Becerra took an unusual step when he filed an amicus curiae brief asking the same court to end the ongoing prosecution of another Kings County woman, Chelsea Becker, whom Fagundes also charged with murder. Becker v. Superior Court of Kings County, F081341 (Cal. App. 5th, filed July 2, 2020).

Becker was nearly nine months pregnant when she delivered a stillborn baby last September. Like Perez, Becker also admitted to law enforcement she had used methamphetamine during her pregnancy and in the days prior to giving birth, records show.

McNamara said in court filings last week that Becerra's argument in Becker's case, which was premised on a decades-old change to the state's murder law, should compel the 5th District to reopen Perez's appeal.

The change in the law came in 1970, when the California Supreme Court overturned the conviction of a man who assaulted his pregnant wife and killed her fetus. The high court reasoned that the plain terms of the murder statute at that time could not sustain a murder conviction because the victim was not born yet. Keeler v. Superior Court, 2 Cal. 3d 619 (1970).

The Legislature amended the statute in response to the Keeler ruling to presume fetuses can be murder victims. But the change stipulated that a person cannot be charged with murder if the actions that caused the death of a fetus were "solicited, aided, abetted or consented to by the mother of a fetus." That was meant to protect women who sought legal abortion.

That's why defense attorneys say the charges against these two mothers are unconstitutional.

But prosecutors have argued in court filings that the statute only excludes murder liability when a woman solicits, aids or abets a third party to facilitate the death of her fetus, such as a doctor. The exclusion doesn't apply when the mother solicited, aided or abetted the death of her fetus herself, prosecutors argued.

"[The statute] does not carve out an exception for a pregnant woman who stabs herself in the stomach and kills her viable fetus or, in this case, chooses to carry the child full term, and chooses to use toxic quantities of methamphetamine throughout her pregnancy and shortly before birth," wrote Deputy District Attorney Louis D. Torch in one filing.

Torch added that courts can look to states such as South Carolina when deciding whether consequences are warranted in cases where drug use results in a stillbirth. In 2003, for example, the South Carolina Supreme Court upheld a mother's homicide conviction, reasoning that 20 years in prison was not cruel and unusual punishment for someone whose use of crack cocaine killed her fetus. State v. McKnight, 576 S.E. 2nd 168 (2003).

Perez's and Becker's cases mark the first time in nearly 30 years a court has considered an argument to expand the reach of California's murder statute, wrote ACLU Attorney Jennifer Chou in an amicus curiae brief filed last week in support of reopening Perez's appeal. People v. Lynda Jones, 93-5 (Justice Ct., Yreka Judicial Dist., Siskiyou County, 1993).

"The revival in Kings County of this disturbing trend provides even more compelling reason to give full consideration now to the constitutional implications of this case," Chou wrote.

Prosecutors, however, say they strongly believe the charges against Becker, as well as Perez's conviction, are appropriate under California law.

"Courts have long recognized that the primary function of the office of a prosecutor is to diligently and vigilantly pursue those who are believed to have violated the criminal codes of the state, and that is precisely what we are doing," Esbenshade said.