SAN JOSE — The scourge of fentanyl has claimed the life of another Bay Area toddler, an 18-month-old San Jose girl named Winter, born on Christmas eve.
This time, the parents are being charged with murder. The San Jose couple didn’t call police for at least 10 hours after they woke up in the early afternoon of Aug. 12 and found their daughter not breathing, court documents say. They told police they were “in denial” and “wanted to grieve together” before calling 911.
By the time San Jose Police arrived, rigor mortis had set in, police say. Winter Rayo’s lips were blue. A toxicology report later determined that the concentration of fentanyl in her blood was 24 times the lethal dose for a child her size.
Police later found photos and videos showing the parents “recklessly smoking narcotics” while holding the baby or in her presence, according to court documents.
The father, 27-year-old Derek Vaughn Rayo, refused to be transferred from jail to his arraignment Wednesday, but the judge ordered him held without bail. The mother, 28-year-old Kelly Gene Richardson, has not yet been apprehended.
It is the first time that the Santa Clara County District Attorney has charged parents for the murder of their child in a fentanyl-related death. If convicted of the charges, the couple could face life sentences.
“Something that should never ever happen, happened again,” District Attorney Jeff Rosen told reporters outside of the Hall of Justice on Wednesday. “A baby swallowed enough fentanyl to kill a grown person. Again, the individuals with the legal and moral responsibility to take care of that child failed horribly and criminally — again — and now we’re in court on a case that shakes our confidence, again.”
The charges come days after the father of 3-month-old Phoenix Castro, who died of a fentanyl overdose in May at her parents’ south San Jose apartment, was denied bail on felony child endangerment charges. Lab tests found fentanyl “all over” her pink-flowered onesie when she died. Phoenix’s mother wasn’t charged, Rosen said, because she, too, died of a fentanyl overdose four months after the baby’s death.
Unlike in baby Phoenix’s case, Santa Clara County officials say that its Department of Family and Children’s Services was not involved in the case of baby Winter Rayo or with either of her parents. Winter’s parents are being charged with murder, Rosen said, because they showed a “conscious disregard for human life,” and prosecutors have evidence in text messages to each other that they knew the extreme dangers of fentanyl.
In Santa Clara County, Rosen said, more than 300 people have died of fentanyl poisoning in the past two years alone.
State and county officials expressed shock at the news of the most recent death on a grim and growing list of Bay Area infants. In October, a 23-month-old boy, Kristofer Ferreyra, died of fentanyl poisoning at his home in Fremont, and his mother, Sophia Gastelum-Vera, is facing involuntary manslaughter and felony child abuse charges.
Read: 5 signs that a child may be overdosing on fentanyl
State Sen. Dave Cortese, of San Jose, called for an expansion of Santa Clara County’s fentanyl working group so community leaders, law enforcement, social workers and others at the frontlines of the fentanyl crisis could come together and propose immediate reforms. Baby Winter’s death, he said, was “heartbreaking” and “nauseating” to even think about.
“When you walk into the funeral home, the last thing you want to look at is a baby casket,” he said. “It’s more emotional sometimes than a death in your own family.”
The felony complaint says that Winter was “particularly vulnerable” and the death involved a “high degree of cruelty, viciousness, or callousness.”
Just after 11 p.m. Aug. 12, her father, Rayo, called San Jose police and said his daughter was unconscious and he “did not know what happened” but that he and his girlfriend were alone at their home near Southwest Expressway in central San Jose. Emergency crews were the first to arrive and found the baby on the bed “covered with a rug,” court documents say.
“It appeared the victim had been deceased for at least 12 hours,” the records say.
The couple told police they had gone to bed at 2 a.m. with their toddler, but when they woke up at 1 p.m., Richardson said that Rayo “was on top of the victim’s legs.” Winter was limp and not breathing and they believed she was dead. They told police that they waited all day and into the night to call 911 because they wanted time to grieve “before police arrived to separate them.”
Blood samples taken from both parents that night found they were both positive for fentanyl, amphetamine and methamphetamine, according to a statement of facts from San Jose police.
At the townhouse where they lived with another person who was a “purported drug dealer,” the documents say, police found fentanyl in white chunky powder on the nightstand, in a scraping tool on the master bedroom desk and on another scraping tool found on the rug underneath the baby.
Text messages show the couple asked the roommate to deliver and leave drugs in “open and unsecured locations” in the house, records show, but the couple also texted each other “their concern about leaving dangerous narcotics within reach of” their baby.
In the couple’s home and in one of their cars, police said they also found Narcan, a medication that can reverse overdoses if caught in time.
Rayo’s criminal history dates back more than a decade. In 2017, he told a Campbell police officer that he’s used methamphetamine since the age of 12, and the longest period he had been clean had been eight months.
His criminal record includes a felony battery conviction for punching a fellow inmate in the face 10 to 20 times in 2016 while he was serving a sentence at Elmwood Correctional Facility in Milpitas, court documents show. In 2019, Rayo was convicted of auto theft and heroin possession. Since 2014, he has racked up a slew of other charges, including bringing methamphetamine into jail, driving under the influence and driving with a suspended license.
On Wednesday, the couple’s neighbors, friends and family members were stunned by the news of the charges.
A Facebook page shows Winter celebrating her first Christmas with her mother’s family. One of Richardson’s close friends said Rayo and Richardson knew each other while at Pioneer High School in San Jose but didn’t start dating until about five years ago.
The couple lived in a well-kept townhouse near San Jose’s Willow Glen neighborhood that was owned by Richardson’s grandmother.
Neighbors Christina and Ronnie Harrison said baby Winter was “the most adorable little thing” and they were “sick” about her death. The Harrisons had been told that the father had rolled over the toddler and suffocated her, but they were suspicious from the start because of Derek’s confrontational nature and the “riff raff” that came and went all hours of the day and night.
Since 2018, the number of children younger than 5 who died from fentanyl poisoning has increased sixfold. And between 2018 and 2022, the youngest person to die of fentanyl in Santa Clara County was 12, Rosen said. With the recent deaths of the babies, he said, “that statistic has been erased.”
“So today we’re asking parents and members of our community to understand what is at stake,” he said. “It’s baby Phoenix. It’s baby Winter. It’s all of our children’s lives. So as your district attorney, I would encourage all of us in our community to work long and hard and focus on two words: No more. No more. Please, no more.”
Staff Writer Robert Salonga contributed to this report.
