Father to stand trial in death of baby Phoenix
SAN JOSE >> On the last day of David Castro's preliminary hearing Feb. 29, when the judge ruled there was enough evidence for him to stand trial, the prosecutor made it clear that Castro wasn't being charged with murder in the fentanyl overdose death of his infant daughter, Phoenix.
Instead, Castro is facing a felony child endangerment charge, which requires no malice or willful intent.
“He's not charged with any intentional homicide, and he's not accused of not loving his baby,” Deputy District Attorney Maria Gershenovich said in her closing argument. “What he is accused of is that after he was entrusted by CPS and others to take care of Phoenix, this 3-month-old infant … (he) kept her in a home that was so toxic and dangerous it actually killed her.”
After listening to three days of prosecution witnesses, including a toxicologist who found fentanyl and methamphetamine in the baby's blood and police detectives who found the same drugs in Castro's San Jose apartment, Santa Clara County Superior Court Judge Paul Bernal ruled there was “sufficient cause to believe he's guilty of that crime.” He also denied a defense request to release Castro from jail while he awaits trial. An arraignment is scheduled for Monday. If convicted of child endangerment and other enhancements, he could face up to 10 years in prison.
The arrest and prosecution
of Castro comes amid a surge in fentanyl deaths across the Bay Area, including five infants since 2020. Dr. Mehdi Koolaee, the Santa Clara County coroner who conducted the autopsy on the infant, testified that he had never before seen fentanyl or methamphetamine in a baby.
Unanswered is how Phoenix ingested the fentanyl. During the preliminary hearing, neither Koolaee nor the prosecutor explained her manner of death, only that the crime lab had found fentanyl on various discolored parts of her little pink onesie, including on the snaps.
San Jose Police Det. Mike Harrington testified Feb. 29 that Castro tested negative for drugs on the day of Phoenix's death. But in a video of police interrogating Castro, he admitted that he knew how to game the system to pass drug tests for social workers while he had custody of the baby. Sometime he would stop using days before a scheduled test or use undetectable amounts.
The baby's May 13, 2023, death, and the coroner's ruling
that she died of a fentanyl overdose, led not only to Castro's arrest but to intense scrutiny of the Santa Clara County's Department of Family and Children's Services. An investigation by the Bay Area News Group late last year found that the child welfare agency sent Phoenix home despite the parents' history of drug addiction and warnings from a social worker that the home environment could be life threatening. Phoenix's two older siblings, now 3 and 5, were taken away by the child welfare agency a year earlier because of severe neglect — and the parents had done little to get them back.
On Feb. 29, Castro's defense lawyer, Mishya Singh, showed the judge photos Castro had taken of his infant daughter happy in her bouncy seat and videos of his tickling her tummy. Castro, 38, sat in a brown jail suit and shackles and wiped away tears as he watched.
“CPS took two of his other kids away, but CPS chose to give Mr. Castro another chance to take care of Phoenix,” Singh said. “And
what Mr. Castro did is that he rose to the challenge the best way he could although he had his own addiction to deal with. He loved that baby.”
Phoenix's mother had been sent to jail on outstanding warrants after the baby's birth and was living in a drug and mental health rehab facility when the infant died. Emily De La Cerda was out on a day pass when she and her mother visited the apartment and found Castro panicking and the baby limp. According to a detective's testimony, Castro told police that he had survived a drug overdose years earlier, and more recently he had revived De La Cerda from one with the use of Narcan. De La Cerda died four months after her daughter, in the same apartment, also of a fentanyl overdose.
That the father is being charged in her death, his defense lawyer said, is “unfair, not on a moral ground, look at the evidence.”
In court a day earlier, Singh had suggested that baby Phoenix didn't die of fentanyl poisoning but that her father likely accidentally smothered her as they slept on the couch the night before — a contention refuted by the coroner, who said the baby showed no signs of suffocation.
On Feb. 29, however, Singh posited that if the baby did, indeed, die of a drug overdose, her mother may be to blame. Two days before Phoenix's death, Castro took the infant to the rehab facility for a four-hour visit with her mother while he ran errands. In several text messages presented in court, De La Cerda complained to Castro that she was having troubling calming the baby that evening.
“You're aware that fentanyl, if someone is agitated, it can calm them down?” Singh asked Harrington, who was on the witness stand.
“Yes,” testified Harrington, one of the lead detectives on the case.
“If a baby is crying, giving a baby a little fentanyl (will) calm them down?” she asked.
Gershenovich, the prosecutor, objected before the officer could answer and later told the judge there was no evidence suggesting the mother drugged the baby or had access to drugs there.
Gershenovich on Feb. 29 also recalled to the stand the coroner who conducted the autopsy on the baby.
During testimony a day earlier, he had said the baby had been dead between 24 to 36 hours, but on Feb. 29 he said pinpointing a time of death is often “unreliable,” and it could have been closer to 10-12 hours.
Singh, the defense lawyer, also reserved blame for the county's child welfare agency for not better informing Castro that drug residue on a tabletop, couch or his hands could harm the baby. CPS could have insisted on a deep cleaning in the house, she said.
“The person hurting the most is sitting right there,” Singh said, pointing to her client. “He would never endanger that baby willfully.”
But the prosecutor put the blame squarely on Castro.
“He was the only person caring for her,” Gershenovich told the judge. “He had a duty of care, and unfortunately he failed her.”