Becerra intervenes for woman charged with murder in her fetus’ death

Attorney General Xavier Becerra weighed in Thursday in a second case in which a woman was charged with murder for allegedly using illegal drugs during a pregnancy that ended with a stillbirth.

Becerra's office is supporting Chelsea Becker, who is asking the state Supreme Court to review homicide charges against her, arguing a 1970 state law amending the murder statute was not intended to be used to charge women with the death of a fetus.

"The practical consequences of an overbroad reading of Section 187 are of particular concern for some of the state's most vulnerable residents," Supervising Deputy Attorney General Karli A. Eisenberg wrote in an amicus curiae letter. Becker v. Superior Court of Kings County, S265209 (S. Sup. Ct, filed Oct. 26, 2020).

"Fear of serious criminal liability and imprisonment has the potential to deter pregnant women with addiction issues from seeking out necessary, and sometimes lifesaving, health care," she added. "And it may cause local law enforcement to place additional and unnecessary scrutiny on every miscarriage and stillbirth -- which are relatively common occurrences."

The case is the second in three years in which Kings County District Attorney Keith L. Fagundes charged a woman with murder who admitted to using methamphetamine during her pregnancy, leading to the death of her baby.

In the first case, Adora Perez pleaded guilty to manslaughter and is serving an 11-year prison term after being charged with murder following the 2017 stillbirth of her baby. She acknowledged using methamphetamine and marijuana.

Philip W. Esbenshade, executive assistant district attorney in Kings County, could not be reached for comment Thursday. In an October interview with the Daily Journal, he said the cases are about defendants "who did specific acts that resulted in the death of a viable fetus."

Mary G. McNamara, a partner with Swanson & McNamara LLP who is representing Perez on appeal, said the 1970 Penal Code amendment was drafted to protect women from criminal liability.

The statute was signed into law after the state Supreme Court overturned the conviction of a man who assaulted his wife and killed her fetus. Keeler v. Superior Court, 2 Cal. 3D 619 (1970).

But Becerra and McNamara argue the statute was aimed at third parties, not the women themselves.

"A woman's actions should never lead to a criminal outcome," McNamara said in a telephone interview Thursday. "Women just won't go to hospitals. They will be too scared the police are going to be there."

She said Fagundes is the only district attorney in the state to prosecute women for murder over their drug intake during pregnancy.

McNamara has asked the 5th District Court of Appeal to reopen the appeal, which was affirmed last year, in a motion to recall the remittitur. She said the motion is an unusual one. People v. Perez, F077851 (Cal. App. 5th Dist., filed March 26, 2019).

Eisenberg's letter to the state Supreme Court in the Becker case followed a decision by a 5th District Court of Appeal panel denying a writ petition. Becker is in jail pending trial.