In what prosecutors call a highly unusual development in a high-profile murder case, a San Jose mom is expected to be released from jail this week without posting bail as she waits for her trial in the fentanyl overdose death of her 18-month-old daughter, Winter Rayo.
The conditions of Kelly Richardson’s release, including whether she will be required to attend an inpatient rehab program, will be discussed at a hearing Friday. Until then, Richardson, 28 will remain in custody.
Winter was one of three Bay Area babies who died in a six-month span last year after being exposed to fentanyl while in the care of their parents.
The toddler’s father, Derek Rayo, is also facing murder charges over the infant’s death last August but he will remain in jail as the case against the couple continues to progress.
Richardson and Rayo waited “at least 12 hours” after baby Winter died before calling 911, according to court filings by the Santa Clara County’s District Attorney’s office. When emergency responders arrived at the couple’s home near Southwest Expressway in central San Jose at around 11 p.m., they found the infant on the bed “covered with a rug,” court documents say.
In a brief hearing Monday, prosecutors strongly objected to letting Richardson out of jail, saying in court filings that even after baby Winter’s death, Richardson bailed on a drug treatment program and relapsed. When she was arrested last November, she was found with “illegal drugs and drug paraphernalia, including bags containing white powder, a bag containing a white crystal substance, and pipes with apparent drug residue,” court documents state.
Deputy District Attorney Monroe Tyler, who is prosecuting the case against Richardson, argued that the charges against her were too grave for her to be released.
“I objected based on the seriousness of the underlying crime, in particular the fact that the victim was an 18-month old toddler,” Tyler said ahead of the hearing.
Supervising District Attorney Brandon Cabrera, who oversees cases where defendants have been released from jail to get substance or mental health treatment, said that it’s extremely rare for a defendant who is charged with murder to be released, especially so early in the process.
But Richardson’s private defense attorney, Adrienne Dell of San Jose, said that the case against Richardson is already highly unusual. “This is the first (baby fentanyl death) case in our county to be charged with homicide,” she said.
And Richardson faces real personal risk behind bars, Dell said. She is currently in a separate section of the jail, living with just one other cellmate. When she walks around the broader complex to go to court hearings, “everyone is calling her baby killer and saying she should die,” Dell said.
Cabrera, meanwhile, says it’s important in such serious cases to weigh whether or not the defendant is in the right headspace to get treatment before releasing them publicly.
“They have to appreciate they have a mental health or substance abuse issue and be amenable to getting services,” Cabrera said. Even required inpatient facilities are “all voluntary — there are no locked facilities” once somebody is released, he said.
Winter’s death came months after another San Jose baby, 3-month-old Phoenix Castro, died from a fentanyl overdose in a case that exposed how Santa Clara County’s child welfare agency disregarded numerous concerns about the baby’s parents to leave her in their care. The father, David Castro, is awaiting trial on a charge of felony child endangerment and other enhancements that send him to prison for 10 years. The girl’s mother, Emily De La Cerda, died four months after her daughter, also of a fentanyl overdose.
After Winter’s death, Santa Clara County officials said that the county’s Department of Family and Children’s Services was not involved in the case of baby Winter Rayo or with either of her parents. And Santa Clara County District Attorney Jeff Rosen said that he chose to file murder charges against Winter’s parents — facing the possibility of life in prison — because they showed a “conscious disregard for human life.” Prosecutors have evidence in text messages the couple exchanged that show they knew the extreme dangers of fentanyl, Rosen said at the time.