Judge renders decision in murder case

SAN JOSE — A judge ruled that two people charged in the South Bay’s first-ever murder case in the fentanyl overdose death of a child will stand trial, while another defendant had his murder charge dropped Monday after a preliminary examination that stretched over several weeks.

Judge Deborah Ryan ruled that Derek Vaughn Rayo, 28, and Phillip Ortega, 32, will face a count of murder, child endangerment and drug trafficking in the August 2023 death of Rayo’s 18-month-old daughter, Winter. Paige Vitale, 32, who like Ortega was a roommate with Rayo and the baby, will face a count of drug possession and a misdemeanor count of child endangerment.

Winter’s mother, Kelly Gene Richardson, 29, was also charged with murder but was dismissed from the preliminary examination and is being prosecuted on a separate schedule; her attorney has expressed doubt about her competency, prompting a judge to stay her case pending the results of a court-ordered psychological evaluation.

Ryan’s decisions Monday conclude a preliminary review that began June 13 and ran intermittently throughout the summer.

Winter’s parents, Rayo and Richardson, were charged with murder last fall on the grounds that their excessive drug use around the child exceeded criminal neglect, the charge parents faced in previous fentanyl deaths of babies in the county. Authorities said powerful illegal opioids and other drugs were scattered throughout the home and within Winter’s reach.

In another surprising development last April, the Santa Clara County District Attorney’s Office filed murder charges against a couple who had lived in the same home, Ortega and Vitale, on allegations that they supplied illegal narcotics to Rayo and Richardson and contributed to the environment in which the baby ingested a massive dose of fentanyl and methamphetamine.

Testimony during the proceedings came largely from law enforcement and the county coroner’s office, detailing their discovery and examination of Winter’s body and the condition of their Willow Glen-area home.

Assistant Medical Examiner Dr. Susan Parson testified about one of the most shocking facts in the case: Winter’s blood contained 74 nanograms of fentanyl per milliliter, which she confirmed was nearly 25 times the lethal amount for a child her size. Winter’s blood also contained 30 nanograms of methamphetamine per milliliter.

San Jose police investigators testified that they were called to the home on Aug. 12, 2023, and found Winter’s body, which was covered by a rug. Prosecutors say both parents waited at least 12 hours before calling 911 after discovering the child was not breathing; the couple reportedly told police they wanted to grieve her death, knowing they would be separated from her by authorities.

Much of the testimony involved DA investigators describing photos and text messages exchanged between the defendants that appeared to reflect a lax attitude toward drugs and drug paraphernalia — including an image of a bong hanging from a stroller and a person holding a flashlight near the child. A crime scene technician carefully studied photos taken from the home that showed drugs contained loose in trash cans and cans in the garage and white pills just feet from where Winter’s body was found.

Barbara Cathcart, one of the lead prosecutors in the case, argued during preliminary examination that the text messages and photos depicted a life situation that made the defendants responsible for the circumstances in which Winter died.

For Rayo and Richardson, she said, there was “no doubt that the extremely reckless use of fentanyl by Winter’s parents around their daughter was what killed her.” She noted that while it was clear the parents loved the child, “it was really just a matter of time before Winter Rayo died, and that is precisely what happened.”

Cathcart compared Ortega to a doctor prescribing addictive medications knowing a patient will abuse them and characterized him and Vitale as instrumental in feeding the parents’ addiction, accusing the latter of selling drugs and keeping track of their drug debts.

The evidence, Cathcart said, showed that Ortega, Vitale and Rayo were guilty of intentional homicide — which involves conduct they knew had deadly consequences — and that the charges should be presented to a jury.

Attorneys for Ortega and Vitale have questioned prosecution witnesses in an effort to establish that they had no parental role or responsibility toward Winter and, therefore, should not be guilty of her murder.

Dana Fite claimed that Vitale was “loosely connected to the actual death of Winter Rayo” and expressed gratitude Monday for Ryan’s decision to dismiss the most serious charges against her.

“From the beginning, we believed that the murder charge did not accurately describe Ms. Vitale’s actual behavior,” Fite said. “While this is undoubtedly a tragic situation that underscores the devastating effects of fentanyl addiction, the District Attorney overstepped his authority in charging Ms. Vitale with murder.”