California Prosecutors Filing Murder Charges in More Fentanyl Deaths

Just about every state in America has cracked down on fentanyl distribution, by stepping up arrests and increasing prison sentences. But few places are as aggressive as Riverside County, Calif., in prosecuting people who supply fatal does of fentanyl.

Since late 2021, the Riverside County district attorney, Mike Hestrin, has charged 34 suspected fentanyl suppliers with murder and is said to be the first prosecutor in California to achieve a guilty verdict from a jury in a fentanyl-related homicide trial.

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

Riverside County has a reputation for aggressively prosecuting crimes (a “prosecutor’s paradise,” one local defense lawyer calls it). And like Riverside, some other counties — like San Diego and Placer, near Sacramento — that have also brought murder charges against fentanyl suppliers have sizable numbers of conservative-minded voters who tend to favor more punitive approaches to crime.

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

Prosecution of street dealers is faulted by some critics as a misguided return to the aggressive approaches of the 1990s, which failed to curb drug use and swelled state prison populations with low-level distributors and people who were addicted to drugs.

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

What’s more, in California, such prosecutions rest on unsettled legal ground, experts say, because prosecutors have been working around the fact that California does not have a law that specifically allows fentanyl deaths to be charged as murders.

Yet even amid such legal uncertainty, such prosecutions are gaining traction across California, a reflection of the public’s anguish over fentanyl, which is a leading cause of death in the United States.

Federal prosecutors can charge someone with distributing fentanyl with a death resulting, which carries a mandatory minimum sentence of 20 years in prison. But the federal authorities do not have the capacity to pursue every street-level dealer, leaving state and local officials to come up with their own responses to what has emerged as a nationwide public health crisis.

Many of the fentanyl cases that have been prosecuted in California involved people who thought they were buying pain pills like Oxycodone or Percocet but ended up with pills containing fentanyl. Illicit drugs like cocaine are also being mixed with fentanyl, which is inexpensive to manufacture and highly addictive.

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

But unlike many other states, California does not have a law that classifies fentanyl deaths as murder. So in bringing murder charges, the prosecutors have gotten creative, borrowing from a legal theory used to prosecute drunken drivers.

It’s called the Watson murder rule, named after a California drunken-driving case dating back more than 40 years, in which courts determined that if an individual knowingly disregards the dangers of driving drunk and kills someone, it can equate to murder.

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

Prosecutors look to text messages and other communications to show that the person supplying the fentanyl was aware of the risks. But this evidence can be hard to find because the person may not always express that knowledge in writing.

Defense lawyers say this definition of murder is overbroad and unconstitutional because the California legislature has not created a law that designates fentanyl deaths as murder.

“So is it murder to sell someone a pack of cigarettes since you know that cigarettes can kill?” said Michael Duncan, a defense lawyer in Riverside County who represents a man sentenced to 15 years to life in prison in November for supplying fentanyl to a 26-year-old woman, Kelsey King.

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

Prosecutors said Mr. Romero had split a pill, which he knew to contain fentanyl, with Ms. King. Mr. Duncan said his client had looked for help for Ms. King, which is 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 to courts and not Mr. Hestrin’s office.”

Of the 34 cases where 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 of those cases, a jury found the defendant guilty of involuntary manslaughter. Six other cases have resulted in plea agreements in which the charges were reduced to voluntary manslaughter. There are 24 cases still pending.

In San Francisco, fentanyl is a volatile issue in a city that has historically taken progressive approaches 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 who were frustrated by crime in San Francisco, is taking a harder line on 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 constraints on resources and lack of evidence.

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

Ms. Jenkins said that a task force of prosecutors and police officers was being trained on how to build a homicide case and that she didn’t expect them to be ready to bring charges until this summer.

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

Even if the dealer isn’t 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 soul has been ripped out of their chest,” she said. “They want to know what happened.”

Parents whose children died from fentanyl are a driving force behind new laws and stepped-up prosecutions just as the parents of drunken-driving victims swayed the nation to crack down on alcohol-fueled traffic deaths decades ago.

Mr. Hestrin, the Riverside County prosecutor, said his decision to start pursuing murder charges had been inspired by his conversations with a local parent, Matt Capelouto, whose 20-year-old daughter, Alexandra, died from fentanyl in December 2019. Home from college, she had taken half a pill that she believed was Oxycodone. But it was a counterfeit pill that contained a lethal dose of fentanyl.

Mr. Capelouto, who owns a print shop in Temecula, a city in Riverside County, said he had initially been told by investigators that his daughter’s death appeared to be an accidental overdose and that there was no crime involved.

Mr. Capelouto requested a meeting with Mr. Hestrin.

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

Mr. Capelouto now serves as president of an advocacy group, DrugInducedHomicide.org, which has been pushing states to crack down on street-level drug dealing.

Mr. Hestrin’s investigators were unable to find enough evidence to show that the person who sold Ms. Capelouto the pills knew they contained fentanyl and that the pills were lethal — elements necessary to prove second-degree murder.

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

“We can’t get ahead of this situation until we can hold drug dealers responsible,” Mr. Capelouto said.

Kirsten Noyes contributed reporting.