Court Ruling in O.C. Drug Case Limits Charges

The state Supreme Court, dealing a sharp setback to prosecutors in a case that began with a fatal drug overdose in a Santa Ana motel room, Thursday drastically limited the use of murder charges against drug dealers and others who provide illegal narcotics that accidentally kill their user.

The ruling allows Orange County prosecutors to try to reinstate felony murder charges against a Tustin man accused of giving cocaine to a 19-year-old woman who later died of an overdose. But it holds them to a higher standard of proof than they had previously needed to make their case.

A badly splintered court held 4 to 3 that a drug provider can be prosecuted for second-degree felony murder in such circumstances only when there is a “high probability” that furnishing the drug would prove fatal.

To permit such charges in unintentional deaths would “inappropriately expand” the law by reducing the seriousness of the act a defendant must commit to be accused of murder, Justice Joyce L. Kennard wrote for the majority.

In a vigorous dissent, Chief Justice Malcolm M. Lucas said the majority’s “unrealistic, unwise and unprecedented” ruling would effectively bar most, if not all, second-degree felony murder charges in deaths resulting from cocaine, heroin and other illicit substances.

Lucas said the court’s strict new requirement would be virtually impossible to meet because such drugs are not known as “so dangerous that death is a highly probable result.”

The court’s ruling arose from the 1986 death of Jennie Licerio, 19. Licerio overdosed on cocaine in a Santa Ana hotel room and later died of acute cocaine asphyxiation.

County prosecutors had brought second-degree murder charges, carrying a maximum prison term of 15 years to life, against Sandy Patterson, a Tustin man who prosecutors said gave Licerio the cocaine that killed her.

But a Superior Court judge threw out that murder charge and was later upheld by the 4th District Court of Appeal in Santa Ana.

The Supreme Court on Thursday reversed that appellate decision, allowing prosecutors to try to reinstate the murder charge but holding them to a tougher standard of proof--that there was a “high probability” of death--than had previously been required.

Orange County Deputy Dist. Atty. Thomas J. Borris, who prosecuted the Patterson case, saw that as a partial victory since he had been barred altogether from bringing murder charges under the local appellate ruling.

“At least now we have some chance. The door has been opened,” Borris said. “At least now I’m in the courtroom.”

Borris said the ruling also allows the district attorney’s office to consider murder charges in two similar drug-overdose cases that had been stalled under the recent appellate ruling in the Patterson case.

But he and his boss, Chief Deputy Dist. Atty. James G. Enright, acknowledged that their office may be hard-pressed to show that the people supplying the drugs in those cases knew there was a high chance that death could result, as required by the Supreme Court’s ruling.

Enright went so far as to say in the Patterson case: “We’re hurting. . . . This looks like a pretty difficult standard to meet, and the timing is rather unfortunate, since we’ve been learning more and more about deaths from cocaine.”

Patterson’s attorney, Julian W. Bailey, said he would be surprised to see new murder charges lodged against his client--now in jail on a new drug charge--but added that he was confident his client could beat the charges in any event.

“He had no idea that (Licerio’s) death was going to result. He was just a guy out having a party with some girls engaged in the same willful conduct as he was.

“This wasn’t a very educated or sophisticated guy,” Bailey said. “Patterson’s conduct was before Len Bias (the college basketball star who overdosed on cocaine). This was before President Bush’s war on drugs.”

Chief Justice Lucas, in a strong dissenting opinion joined by Justices David N. Eagleson and Marcus M. Kaufman, argued that second-degree murder charges should be permitted on a less-stringent showing that furnishing the drug presented an “inherent danger” or “substantial risk” of death.

“At a time when our society faces a serious ‘crack’ cocaine crisis of epidemic proportions, the majority’s holding is particularly unwelcome,” the chief justice said.

The ruling represented a clear rebuff to a coalition of state and local prosecutors who had sought a new weapon in the war against drugs by asking the court to give them more leeway to bring murder charges when death resulted from narcotics.

Although still allowing murder charges against dealers who try to kill the user or who knowingly provide a lethal dose, the court set a standard in cases involving unintentional deaths that will be very difficult to meet, authorities said.

Michael D. Schwartz, a Ventura prosecutor who represented the California District Attorneys Assn. in the case, acknowledge the court had “virtually eliminated” felony-murder prosecutions for drug fatalities. But he noted there were still other means to charge murder, as when a dealer knowingly provides a fatal overdose or fatally tainted substance.

“We’re not going to give up,” Schwartz said. “We’ll still use all the tools we can in drug prosecutions, both in fatal and non-fatal cases.”

State Deputy Public Defender Philip M. Brooks welcomed the ruling, saying the court had reached a “correct result” in curbing felony-murder prosecutions for unintentional drug deaths. It would be unfair, he said, to allow such prosecutions where death was unintentional.

“If there is malice--such as knowingly or recklessly providing a fatal dose--let the prosecution prove such malice,” Brooks said. “There are still plenty of weapons in the arsenal,” he added, noting that prison terms of 10 years or more are often imposed for other drug-related offenses.

The court’s unusual voting alignment and segments of justices’ opinions reflected the difficulty of the case and the uneasiness it caused within the court.

Kennard, in only her second majority opinion since joining the court last spring, said the majority “share the concern” of the dissenters with the “tragic effects that the abuse of illegal drugs, particularly crack cocaine, has on our society.”

But she went on to say that it should be up to the Legislature, not the court, to alter the law to widen the ability to prosecute drug providers.

Justice Edward A. Panelli, a conservative who along with liberal Justices Stanley Mosk and Allen E. Broussard joined Kennard in forming the slim majority adopting the “high probability” test, also urged the Legislature to review the issue.

“I am uneasy because we have traveled very close to the edge of our role as judges and have come perilously close to becoming legislators,” Panelli said.

State law permits murder charges when death results from commission of a felony, even when the killing is unintentional or accidental. The aim of the felony-murder rule is to deter crime by holding criminals strictly liable for the consequences of dangerous acts.

Statutes specifically provide for first-degree felony murder charges in cases of robbery, rape and certain other offenses, with punishment of from 25 years to life in prison. The courts have permitted second-degree felony murder charges for heroin fatalities and some other offenses, but those decisions have come under increasing doubt in recent years.

In the Orange County case, Patterson sought dismissal of the murder charge and an Orange County Superior Court judge agreed, finding Patterson could not be held liable for Liciero’s death.

Later, in upholding the dismissal, a state Court of Appeal concluded reluctantly that under recent high court decisions, Patterson could not be charged with murder. The panel said that while he was accused of “furnishing” the cocaine, the drug statute under which he was charged also could be violated in ways that were not “inherently dangerous”--such as transporting the drug.

Orange County prosecutors appealed to the state high court, supported by the district attorneys association and other law enforcement officials throughout the state. While such prosecutions have not been brought often, authorities said they would welcome any new tool to combat the widening problem of drug use. Several other test cases have been pending.

In Thursday’s ruling, the justices gave prosecutors a partial victory by ruling that contrary to the Court of Appeal decision, a murder charge could be brought for fatalities resulting from the particular offense of “furnishing” a drug, even though the statute covered other drug offenses--such as transporting a drug for personal use--that were not inherently dangerous.

The justices ordered the case sent back to the trial court so that prosecutors can make another attempt to charge Patterson with murder. But to make the charge stick, the court said, they will have to meet a more stringent standard by showing that furnishing cocaine, in general, carries a “high probability” that death will result.

Meanwhile, Patterson had pleaded guilty to furnishing cocaine, served time in jail and was released on probation while the murder charge was on appeal. But later he was arrested and convicted of selling cocaine to an undercover police officer. His probation has been revoked and he has been sent to Soledad State Prison, according to prosecutors.