Noisy in court backfires on defendant not wanting to hear fentanyl warning – Orange County Register

As part of a plea deal in a drug deal, Orange County District Attorney Claudia Alvarez tried to warn defendant Rogelio Garcia Jr that he could be charged with murder if he sold drugs containing fentanyl causes death.

But Garcia didn’t want to hear it. With her hands shackled, Garcia couldn’t put her fingers in her ears. So, on the advice of Deputy Public Defender Justin Cerrillo, prosecutors say, Garcia started humming at the public hearing. And he continued to hum – loudly – until Cerrillo signaled him to stop.

The novel legal strategy struck a sour note with Judge Cynthia Herrera, who rejected the plea agreement and ordered Garcia to face trial and the possibility of a longer sentence.

It’s not clear if the noisy plea will catch on in Southern California courts, but it does show the length of time defense attorneys will have to take to fend off efforts by prosecutors in some counties. to charge fentanyl-related deaths as homicides. Prosecutors did not consider the deaths to be drug overdoses but poisoning. By issuing a warning, they believe it strengthens potential murder charges.

State law prescribes a similar strategy in drunken driving cases, in which previously intoxicated drivers have been warned of the risks and dangers of the behavior. That person can be charged with murder if they cause a traffic accident.

District attorneys in Orange, San Bernardino and Riverside counties plan to continue issuing their warnings — known as counsel — that traffickers laced with fentanyl could be charged with murder. It’s part of a campaign to stem the tide of teratogenic deaths in Southern California, but disagreement remains over whether the strategy will work in the courts.

Martin Schwarz, Orange County public defender, said the attempt was illegal. Schwarz noted that the state Supreme Court has repeatedly ruled that an overdose cannot be charged with murder. Furthermore, efforts to pass legislation allowing murder charges in fentanyl-related deaths have been shot down in the Legislature, most recently SB 350 by Republican Lake Elsinore Senator Melissa Melendez .

“It is against the law that the DA intentionally entered the file. All of our (lawyer) are pushing back on that,” Schwarz said. “At its core, that’s what my office is all about, pushing back against over-prosecution.”

Crackdown in the counties

In Riverside County, Eleven people have been charged with murder in 10 cases. In San Bernardino County, District Attorney Jason Anderson said his office charged a man with murder in the fentanyl-related death last April of a Chino Hills teenager. He has also partnered with the San Bernardino County Sheriff’s Department to establish a fentanyl task force to respond to and investigate suspected cases of fentanyl.

No one has been charged with murder in Orange County, but District Attorney Todd Spitzer is bringing drug traffickers into focus.

“If you are peddling fentanyl, and you kill someone in my county, we will absolutely consider charging you with murder. Last week, Spitzer said.

In Riverside County, District Attorney Mike Hestrin said the number of fentanyl-related deaths there has skyrocketed more than 800% since 2016. And Sheriff Chad Bianco said the number of confirmed fentanyl deaths in the county in 2021 is close to 400 so far, but he predicts that number will rise to more than 500 as the results of toxicology studies in other suspected overdoses emerge.

San Bernardino County could not provide the number of fentanyl-related deaths in the county for 2020 and 2021.

In Orange County, the number of fentanyl-related deaths increased from 37 in 2016 to 432 in 2020, a staggering 1,067% increase. Those numbers have risen by 18.5% in 2021, with 512 fentanyl and poison-related deaths still pending and more than 400 others, according to sheriff spokeswoman Carrie Braun. .

And in Los Angeles County, 1,117 fatal fentanyl overdoses were recorded in 2021, down 0.7 percent from 1,125 the year before, according to the county’s Department of Public Health. District Attorney George Gascon was not involved in the project to charge fentanyl overdoses with homicides.

Legal battle strategy

Riverside County Attorney Steve Harmon says there’s not much his attorney can do to prevent their clients from accepting murder advice, especially if they want to accept a plea agreement.

“If the defendant doesn’t sign the agreement, then they’ll have to go to court… that’s the reality of it,” Harmon said.

However, if the defendants were to go to trial, it would open a few doors against murder charges. Cases can be argued before judges or taken to the court of appeals and possibly the state Supreme Court.

“We’re definitely, definitely going to fight hard, it’s hard, it’s hard to say that the law doesn’t provide for murder,” Harmon said.

More theater than substance

Lawrence Rosenthal, a professor at the Dale E. Fowler School of Law at Chapman University, said he sympathizes with the view that fentanyl traffickers are responsible for the deaths. But he believes the effort to prosecute traffickers for murder is more political than substantive. Rosenthal noted that Spitzer will run for office this year.

“It’s going to be very difficult to win either of these cases,” says Rosenthal. “The law requires you to prove murder for a crime. Drug dealers are not trying to kill their buyers.”

He added: “More likely (prosecutors) are trying to get favorable press rather than (trying to) influence policy.”

Rosenthal said the key to solving the fentanyl problem is working more closely with law enforcement.

“Instead of decades-long sentences, they should arrest drug seizures in larger numbers,” he said.

‘An ethical issue’

Jody Armor, a professor at USC Gould School of Law, said it was too early to say how the murder charges would make it to court.

“I’m not betting in its favor, but I’m not betting against it either,” Armor said, adding that regardless of whether the referees accept it, the strategy won’t cure the deaths. due to fentanyl.

“That is worrisome. … It shows that we have learned nothing from the failed war on drugs of the past 40 years,” said Armor. “We are moving towards a punitive approach rather than a public health approach.”

He added: “I think there’s a moral issue in charging people who unknowingly cause someone else’s death with murder.”

For his part, DA Spitzer said he will continue to notify suspected dealers like Garcia.

“You can hum all you want, but that doesn’t change the fact that drug dealers are killing people by selling them fentanyl, and at some point they will have to face with music.”

Screenwriter Joe Nelson contributed to this report.