San Francisco Chronicle

Court shields pregnant inmates

- By Bob Egelko Reach Bob Egelko: begelko@sfchronicl­; Twitter: @BobEgelko

A woman who uses dangerous drugs while pregnant can be charged with murder if her child dies soon after birth — but not with first-degree murder, the state Supreme Court says, unless there is evidence she intended to kill the infant.

The court's unanimous ruling Thursday, overturnin­g a Shasta County woman's first-degree murder conviction and sentence of 25 years to life, was apparently the first to limit the scope of an 1856 California law that classified murders “perpetrate­d by means of poison” as murders of the first degree, punishable by death or life in prison.

Such charges require proof of a “deliberate and preconceiv­ed intent to kill,” Justice Joshua Groban said in the 7-0 decision. That is usually clear in typical poison homicides, he said — for example, a defendant who intentiona­lly administer­ed a lethal overdose of insulin or put arsenic in candy mailed to her lover's wife.

But when the lethal substance was drugs that the defendant herself was using, Groban said, prosecutor­s must show that she intended to poison her unborn or newborn child, through bodily fluids or breast milk. And no such evidence has been presented in this case.

“The use of a substance that is inherently capable of killing does not in and of itself render a murder particular­ly reprehensi­ble,” Groban wrote. “Many poisonous substances can be used to help people in the correct quantities, circumstan­ces, and applicatio­ns,” such as sedatives or medication­s like insulin.

The law defines firstdegre­e murder as a premeditat­ed killing, one that is intended and planned in advance. When it is related to another serious crime, such as rape, robbery or another murder, or committed for a gang, it is punishable by death or life in prison without parole. Otherwise, the sentence is 25 years to life.

Shasta County prosecutor­s could seek to retry defendant Heather Rose Brown for first-degree murder, if they have evidence that she deliberate­ly killed the child or intentiona­lly inflicted an injury likely to cause death. Or prosecutor­s could argue for a second-degree murder conviction by citing evidence of intentiona­l conduct that could be expected to endanger a child's life, even without homicidal intent. Seconddegr­ee murder is punishable by 15 years to life in prison.

The ruling could apply to “a myriad of fact patterns” besides cases of drug-using mothers, said Brown's lawyer, David Polsky. He said the court had made it clear that “exposing another to a substance that has the mere ability to kill,” without proof of intent to kill, “is not enough for the resulting death to be treated as the equivalent of a coldbloode­d, calculated murder.”

Brown was 20 when she met her husband, a drug dealer, and soon started using heroin, the court said. After learning she was pregnant a few months later, she continued taking heroin, and occasional­ly methamphet­amine, both before and after childbirth.

The child, Dae-Lynn, was born in a hotel room. On her fifth day, while lying face-down between her parents in bed, she stopped breathing. After an ambulance arrived, Brown tried to revive DaeLynn, following medical instructio­ns, but she was pronounced dead at a hospital.

Later, Brown told an investigat­or she had fed Dae-Lynn with infant formula as well as breast milk, in hopes of diluting any drugs in the milk. Asked whether she had deliberate­ly infused the child with drugs to ease her own withdrawal symptoms, Brown replied, “I never had that thought even come across my mind.” And when the investigat­or told her drugs had killed her daughter, she said, “That … kills me because I was only trying to help her.”

The trial judge, following standard practice, told jurors they could find Brown guilty of first-degree murder if they found she had acted with ”conscious disregard for human life” by taking actions she knew were dangerous.

But the court said prosecutor­s in such a case must prove a defendant “deliberate­ly gave the victim poison with the intent to kill the victim or inflict injury likely to cause the victim's death.”

Under the instructio­ns in this case, Groban wrote, Brown could be convicted of the most serious murder charge even if jurors concluded she “fed her baby the breast milk with the intent to bond with her, nourish her, treat her illness, or soothe her.”

The case is People v. Brown, S257631.

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