Exclusive: Police say a San Jose couple waited 10 hours to report their baby’s fentanyl overdose. Now they’re charged with murder

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.

Santa Clara County District Attorney filed charges Monday against the parents, 26-year-old Kelly Gene Richardson and 25-year-old Derek Vaughn Rayo, who court documents say were caught in photos and videos “recklessly smoking narcotics” while holding the baby and in her presence. Rayo has a lengthy criminal history and told police years earlier that he had been using methamphetamine since he was 12. Rayo is scheduled for arraignment at 1:30 p.m. Wednesday at San Jose’s Hall of Justice. Richardson has not yet been apprehended.

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 died — also 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.

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. Winter becomes the third Bay Area baby victim of the deadly opioid in six months.

State Sen. Dave Cortese of San Jose called for an expansion of Santa Clara County’s fentanyl working group into a “blue ribbon task force” where 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.”

For Winter, the only fight left is over who will be held accountable.

In San Jose, the felony complaint says that the toddler was “particularly vulnerable” and the death involved a “high degree of cruelty, viciousness, or callousness.”

Just after 11 p.m. Aug. 12, Rayo, the father, called San Jose police and told him their 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 master 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, the mother, 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.

During the investigation, police later found video and photographic evidence showing the parents smoked narcotics while holding the baby or being near her, court documents say. They also discovered text messages showing the couple knew how dangerous the drugs were around the toddler. The messages show they asked the roommate to deliver and leave drugs in “open an 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 since the age of 12, 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. The victim received seven to 12 stitches. 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.

Since 2018, the number of children younger than 5 who died from fentanyl poisoning has increased sixfold. And parents are being held accountable.

Santa Clara County Supervisor Cindy Chavez said she was stunned that the list has grown to add the name of another child.

“I feel speechless … no child should be in that situation,” said Chavez, who has worked to raise awareness of the epidemic and pressured schools to train their staff on how to react to the deadly drug. Fentanyl “is so pervasive that in order to really protect children and to protect our community, we need to continue to step up our fight on every front.”

Check back for more on this developing story.

Staff Writer Grace Hase contributed to this report.