Judge mulls reversal of manslaughter conviction for drug-caused stillbirth

A Kings County woman will have to wait to see if her manslaughter conviction arising from a stillbirth when she was taking methamphetamines will be reversed and vacated after a superior court judge ruled Tuesday to take her habeas corpus petition under submission.

Judge Valerie R. Chrissakis is expected to issue a ruling by March 17. If the conviction is reversed, Adora Perez will be back to facing an open charge of murder for the death of her baby, who was stillborn in 2017.

At the crux of the case is whether or not California's murder statute allows for the prosecution of women who babies are stillborn as a result of the mother's illegal drug use. The issue is being contested between District Attorney Keith L. Fagundes and Adora Perez's defense attorneys and Attorney General Rob Bonta, who filed a brief in support of Perez's petition in January. In re: Adora Perez, 21W-0033A (Kings County Super. Ct., filed Feb. 19, 2021).

Tuesday's hearing, according to defense attorney C. Matthew Missakian of Long Beach, focused primarily on whether an appellate decision issued last year supported the reversal of Perez's no contest plea.

"It was a plea to a charge that was legally and factually impossible for her to have committed," Missakian stated in an interview Tuesday.

Missakian, with co-counsel Mary G. McNamara and Audrey A. Barron of Swanson & McNamara LLP, argued that under precedent set by People v. Richardson, Perez's no contest plea should be reversed because "she could not have been guilty of manslaughter because it was clear on the record that her victim was a fetus, and manslaughter in California exists only when the victim is a human being."

The Richardson opinion, published June 2021 by the 1st District Court of Appeal, found that all negotiated pleas require the court to find a factual basis for the plea and that "where the record conclusively establishes facts that makes the defendant's commission of a crime impossible, a court abuses its discretion by finding a factual basis and accepting a guilty plea to that crime." People v. Richardson, 2021 DJDAR 5650 (Cal. App. 1st Dist., June 10, 2021).

Fagundes did not respond to requests for comment sent to spokesman Philip W. Esbenshade.

But in a brief filed by Assistant District Attorney Louis D. Torch the DA argued Richardson does not apply to Perez's case because her plea was entered pursuant to People v. West, 3 Cal. 3d 595 (1970), regarding a plea entered without admitting the factual truth of the allegations against the defendant but rather entered for practical purposes to avoid a harsher sentence if convicted.

In this case, the DA argued Perez accepted the plea to manslaughter to avoid the greater charge, murder, that could have carried a sentence of 25 years to life.

Fagundes wrote the plea to manslaughter is reasonably related to the murder charge: "Both involve the death of a person."

Perez was charged with murder after her doctors informed police her methamphetamine use had caused the stillbirth. According to prosecutors, she acknowledged the drug use to investigators. She is one of two women Fagundes has charged with murder following stillbirths that involved illegal drug use, but she is the only one serving time.

Chelsea Becker was similarly charged in 2019, but her charges were dismissed by a Kings County Superior Court judge, who found prosecutors had not established the implied malice under the murder statute. The ruling did not address the applicability of the murder statute to women whose babies are stillborn because of their mothers' drug use.

Bonta has contested Fagundes interpretation of the murder statute and applicability to stillbirth drug use cases, arguing the Legislature broadened the statute in 1970 to ensure a third party who killed a fetus did not escape punishment, not to criminalize a woman's own actions that might result in a miscarriage or stillbirth, according to a brief filed in support of Perez's petition.