Opts to challenge murder case
In a rare clash between state and local prosecutors, California Attorney General Xavier Becerra is challenging a district attorney’s murder charge against a drugusing woman who gave birth to a stillborn fetus.
Chelsea Becker of Hanford ( Kings County) was 8 ½ months pregnant at the time of the stillbirth in September 2019. Police said methamphetamine was found in the fetus and that Becker admitted using the drug as recently as three days before the delivery. District Attorney Keith Fagundes’ office charged her with murder, and she has been in jail on $ 2 milBecerra
“It’s very rare for an attorney general to step in like this ... but this is a very serious criminal charge.” Robert Weisberg, codirector of Stanford Criminal Justice Center
lion bail since last November.
Becerra sits atop the state’s law enforcement structure, and one of his office’s chief tasks is representing local prosecutors when their cases are appealed to higher courts. But in this case Becerra contends the district attorney has exceeded the bounds of the law in ways that could endanger other women, and he has asked the state Supreme Court to intervene.
Fear of prosecution “has the potential to deter pregnant women with addiction issues from seeking out necessary, and sometimes lifesaving, health care,” Becerra’s office said in a Nov. 5 filing with the state’s high court. “And it may cause local law enforcement to place additional and unnecessary scrutiny on every miscarriage and stillbirth.”
California allows murder charges for the death of a fetus under a 1970 law prompted by the case of a Stockton woman whose exhusband beat her in order to kill the fetus she was carrying. The state Supreme Court ruled that he could not be charged with murder because the existing California law, which dated from 1850, applied only to the slaying of a “human being.”
The current law would allow a murder prosecution for intentionally or recklessly causing the death of a fetus, with several exceptions: a legal abortion; a medical intervention to save the woman’s life; or any act that was “solicited, aided, abetted, or consented to by the mother of the fetus.”
That last exception, and the case that led to the law’s passage, show that “the Legislature meant to criminalize only thirdparty violence against women that results in fetal death,” Becerra’s office said in its recent court filing. If Becker can be charged with murder, the office said in an earlier filing with a state appeals court, so could a woman whose cigarettesmoking or failure to wear an auto seat belt was alleged to have killed her fetus.
But Fagundes’ office says the law does not immunize all pregnant women from murder charges for fetal deaths.
“Nothing in ( the law) excuses the reckless or indifferent unlawful conduct of a mother that results in the unlawful death of her fetus,” said Philip Esbenshade, executive assistant to the district attorney. “This is not a case about abortion nor women’s reproductive rights. This is a case about a person who did specific acts that resulted in the death of a viable fetus.”
Laurie Levenson, a criminal law professor at Loyola Law School in Los Angeles and a former federal prosecutor, had a different view.
Such a prosecution “is a classic move in a campaign to eventually criminalize abortion because it creates the issue of whether the fetus is a separate person,” said Levenson, who is not involved in the case.
It is not the first such case for Fagundes. In 2018 his office charged another Hanford woman, Adora Danyel Perez, with murder after a stillbirth that prosecutors said was caused by her use of methamphetamine.
After a state appeals court refused to dismiss the charge, in a brief ruling with little explanation, Perez pleaded guilty to manslaughter to avoid a potential life term and was sentenced to 11 years in prison. But she now has new lawyers who asked the appeals court last month to reopen the case, saying Perez’s original attorney acted incompetently by failing to contest the charge.
“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,” said her current attorney, Mary McNamara of San Francisco. The American Civil Liberties Union is supporting the appeal, and Becerra’s office told the court it would not oppose reopening the case.
As in Perez’s case, a Kings County judge and the Fifth District Court of Appeal in Fresno have refused to dismiss the murder charge against Becker, rulings her lawyer and Becerra’s office have asked the state Supreme Court to review. Becerra’s office said the only such California prosecutions in the past were dismissed by judges in San Benito and Siskiyou counties, in 1992 and 1993, and by a state appeals court in Sacramento in 2004.
Robert Weisberg, a Stanford law professor and codirector of the school’s Criminal Justice Center, said the language of the law — barring prosecutions for actions “solicited, aided, abetted or consented to by the mother” — was “very ambiguous.” He said the district attorney was not farfetched in his argument that the law did not totally prohibit prosecutions of pregnant women for fetal deaths.
But Weisberg said Becker and Becerra should be able to rely on a longstanding legal doctrine that ambiguous criminal laws must be interpreted leniently, in the defendant’s favor, when a conviction would have serious consequences.
“It’s very rare for an attorney general to step in like this ... but this is a very serious criminal charge,” Weisberg said. He said the court’s view of the law has implications for “a woman’s control of her own body.”