Court Rejects Linking Drug Dealer to Death : Law: Appellate panel reaffirms ruling that prosecutors must prove that supplying a substance carries ‘high probability of death’ before trying the supplier on a murder charge.

For the second time in a month, the 4th District Court of Appeal has rejected the notion that supplying illicit drugs to someone who then dies as a result is murder.

The appeal court’s decisions, which reflect rulings of the state Supreme Court, deal a blow to efforts by the Orange County district attorney’s office to open another front in the war on drugs.

The Court of Appeal ruled unanimously earlier this week that, while providing a dangerous drug may carry with it a “probability” of death, prosecutors and experts must produce evidence that it constitutes a “high probability of death” in order to sustain a murder charge.

“Obviously, we’re disappointed,” Deputy Dist. Atty. E. Thomas Dunn Jr. said Friday. “We’re considering what to do. . . . We’re going to have to evaluate the pros and cons” before deciding whether to appeal the rulings.

“If we’re serious about the war on drugs,” Dunn said, “why in the world would this conservative (state) Supreme Court invent a rule that does nothing but immunize people from furnishing and selling the type of dangerous drugs that put people in the ground, that kill?”

Although the district attorney’s office has no other similar cases under appeal, Dunn said, “we haven’t thrown in the towel. We still think we’re right. The courts should rethink this ‘high probability of death in the abstract,’ because it’s completely unworkable.”

Associate Justice Sheila Prell Sonenshine, in ruling in a case involving a woman who died of a cocaine overdose in 1985 in Santa Ana, wrote:

“Although the medical community is questioning whether there is a safe, therapeutic dose of cocaine, in proper concentrations, in specialized, well-monitored settings, cocaine can be used with relative safety.”

The court affirmed a lower court decision that Sandy Patterson, who provided cocaine to Jennie Licerio and Carmen Lopez, could not be charged with second-degree murder after Licerio died of an overdose.

Patterson pleaded guilty to three counts of furnishing cocaine, but a judge dismissed the second-degree murder charge.

When the state Supreme Court ordered the trial court to at least hear testimony on the issue, prosecutors called Dr. Philip Edelman, medical director of the Poison Center at UC Irvine.

Although Edelman testified that using cocaine for “biological effect” was inherently dangerous and carried with it a “high probability” of death, the trial judge concluded only that there “may be a probability of death. . . .”

In its ruling this week upholding that decision, Sonenshine wrote that “the act of furnishing the drug alone carries with it no probability of death.”

The majority decision then quoted from its previous ruling, released May 21, involving PCP, finding that “merely conveying the drug to another does not require that it be consumed.”

In the PCP case, the court overturned the murder conviction of a Huntington Beach man who sold a cigarette dipped in the drug to a surfer who later drowned.