A state appeals court in San Jose has ordered dismissal of a murder charge against an alleged drug dealer in the 2023 fentanyl death of 19-month-old Winter Rayo, the San Francisco Chronicle reported. The 6th District Court of Appeal ruled 3-0 on Monday.
Even if Phillip Ortega supplied the drugs, he did not place them within the child's reach, the court said. "Despite clear evidence of petitioner's conscious disregard for human life," Justice Adrienne Grover wrote, his actions "were too remote from the parents' life-endangering conduct to support prosecuting petitioner for implied malice murder," SFist reported.
The girl's parents, Derek Rayo and Kelly Richardson, were convicted of second-degree murder in May and face 15 years to life, the Chronicle reported. Ortega's lawyer, Renee Hessling, said in a statement: "When the Government overreaches and overcharges that is an injustice, too."
Deputy District Attorney Daniel Rothbach told the Chronicle that DA Jeff Rosen's office is in talks with the state attorney general about challenging the ruling. Ortega still faces felony child endangerment and possession of drugs for sale.