As part of a plea deal in a drug sales case, Orange County prosecutor Claudia Alvarez tried to warn defendant Rogelio Garcia Jr. that he could be charged with murder if he ever sells fentanyl-laced drugs causing a death.

But Garcia didn’t want to hear it. With his hands shackled, Garcia couldn’t put his fingers in his ears. So on the advice of Deputy Public Defender Justin Cerrillo, prosecutors say, Garcia started humming in open court.  And he kept humming — loudly — until Cerrillo gave him the sign to stop.

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

It’s unclear whether the humming defense will catch on at Southern California courthouses, but it shows the lengths that defense attorneys will take to push back on efforts by prosecutors in some counties to charge fentanyl-related deaths as murders. Prosecutors don’t consider the deaths as overdoses, but as poisonings. By issuing a warning, they believe it will strengthen potential murder charges.  

State law provides for a similar strategy in drunken driving cases, in which intoxicated drivers who have been previously warned of the risks and dangers of such behavior can be charged with murder if they cause a traffic death.

District attorneys in Orange, San Bernardino and Riverside counties plan to continue giving their warning — called an advisement — that dealers who sell fentanyl-laced drugs could be charged with murder. It is part of a campaign to stop the wave of fetanyl deaths in Southern California, but there is disagreement on whether the strategy will hold up in the courts.

Martin Schwarz, Orange County’s public defender, said the effort is illegal. Schwarz notes that the state Supreme Court repeatedly has ruled that overdoses can’t be charged as murders. Moreover, efforts to pass laws allowing murder charges in fentanyl-related deaths have been shot down in the Legislature, the most recent being SB 350 by Lake Elsinore Republican Sen. Melissa Melendez.

“The advisement that the D.A. is trying to get into the record is contrary to the law. All of our (lawyers) are pushing back on that,” Schwarz said. “At its core, it’s what my office is all about, pushing back on prosecution overreach.”

Crackdown in counties

In Riverside County, 11 people have been charged with murder in 10 cases. In San Bernardino County, District Attorney Jason Anderson said his office has charged one man with murder in the fentanyl-related death last April of a Chino Hills teen. He also has partnered with the San Bernardino County Sheriff’s Department to form a fentanyl task force to respond to and investigate suspected fentanyl cases.

No one has been charged with murder in Orange County, but District Attorney Todd Spitzer is putting drug dealers on notice.

“If you peddle fentanyl, and you kill somebody in my county, we will absolutely consider charging you with murder. Enough is enough,” Spitzer said last week.

In Riverside County, District Attorney Mike Hestrin said the number of fentanyl-related deaths there has skyrocketed by more than 800% since 2016. And Sheriff Chad Bianco said the number of confirmed fentanyl deaths in the county in 2021 is nearly 400 thus far, but he anticipates that number to increase to more than 500 when toxicology results in other suspected overdose cases come in.

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

In Orange County, fentanyl-related deaths increased from 37 in 2016 to 432 in 2020, a stunning 1,067% jump. Those figures grew by 18.5% in 2021, with 512 fentanyl-related deaths logged, and toxicology still pending on more than 400 other cases, according to sheriff’s spokeswoman Carrie Braun.

And in Los Angeles County, 1,117 fatal fentanyl overdoses were recorded in 2021, down 0.7% from 1,125 the previous year, according to the county’s Department of Public Health. District Attorney George Gascon is not participating in the project to charge fentanyl overdoses as murders.

Fighting the legal strategy

Riverside County Public Defender Steve Harmon says there is nothing much his lawyers can do to block their clients from accepting the murder advisement, especially if they want to accept a plea deal.

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

However, if defendants do go to trial, that opens a few doors toward fighting murder charges. Cases can be argued before judges or taken up to the appellate court and perhaps the state Supreme Court

“We certainly, certainly will fight hard, hard, hard to say the law does not provide for a murder conviction,” Harmon said.

More theater than substance

Lawrence Rosenthal, a professor at Dale E. Fowler Law School at Chapman University, said he is sympathetic toward the notion that fentanyl dealers should be held accountable in deaths. But he believes the effort to prosecute dealers for murder is more political theater than substance. Rosenthal noted that Spitzer is running for reelection this year.

“It will be extremely difficult to win one of these cases,” Rosenthal said. “The law requires for a murder conviction you prove malice. Drug dealers are not trying to kill off their buyers.”

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

Rosenthal said the key toward solving the fentanyl problem is working closer with law enforcement.

“Rather than the headline-grabbing, decades long-sentences, they should be going for larger numbers in narcotics arrests,” he said.

‘A moral problem’

Jody Armour, a professor at the USC Gould School of Law, said it is too early to tell how the murder charges will fare in the courts.

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

“It is concerning. … It suggests we haven’t learned anything from the failed war on drugs over the last 40 years,” Armour said. “We’re going toward a punitive approach rather than a public health approach.”

He added: “I think there’s a moral problem with charging people who accidentally cause the death of another with murder.”

For his part, D.A. Spitzer said he will keep putting suspected dealers like Garcia on notice.

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

Staff Writer Joe Nelson contributed to this report.

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