May 30, 2024
A couple who lived at home of 18-month-old Winter Rayo have been criminally charged on allegations they carelessly kept opioids around the child.

SAN JOSE — A couple who lived at the same home where 1-year-old Winter Rayo was found dead last year with a horrifically lethal amount of fentanyl in her body will join the child’s parents as unprecedented murder defendants in her death, according to court documents.

South Bay residents Phil Ortega, 32, and Paige Vitale, 33, are accused of negligently leaving narcotics around the home off Southwest Expressway where first responders were called Aug. 12 and discovered that Winter had been dead for more than half a day.

An autopsy determined that Winter’s blood contained 24 times the lethal dose of fentanyl for her age.

Kelly Gene Richardson, left, and Derek Rayo, mother and father of 1-year-old Winter Rayo, who died of a fentanyl overdose in August, appear for their arraignment on Monday, Nov. 27, 2023, at Santa Clara Hall of Justice in San Jose, Calif. (Dai Sugano/Bay Area News Group) 

Last fall, Derek Rayo and Kelly Richardson became the first parents in Santa Clara County to be charged with murder in the fentanyl-exposure death of their child.

Investigators with the Santa Clara County District Attorney’s Office allege that Ortega and Vitale both used narcotics at the residence and left them in “accessible areas of the house,” and that Ortega sold drugs to Richardson “even though he knew she was acting recklessly around” the child.

“Paige Vitale and Phillip Ortega knew that fentanyl and methamphetamine were dangerous to human life,” Investigator Sheena Woodland wrote in a probable cause affidavit accompanying the new murder charges. “Despite this knowledge, they affirmatively took actions which would naturally and probably result in (Winter’s) exposure to fentanyl and methamphetamine.”

Ortega has been in the county Main Jail since December on drug charges, and Vitale was booked Tuesday into the Elmwood women’s jail. They are scheduled to be arraigned Wednesday afternoon in a San Jose courtroom.

Both are being held without bail, and each have been charged with murder, endangering the health of a child, and illegally selling a controlled substance. Ortega also faces a charging enhancement because he was out on bail for a felony false imprisonment charge at the time of the murder allegations. The charges carry potential lifetime prison sentences.

The charges against Ortega are built on both his criminal history that includes several drug convictions and evidence that he was actively handling and selling fentanyl and methamphetamine in the months before and after Winter’s death, according to prosecutors. He was arrested in March, June, September and December last year and found to have sellable quantities of fentanyl and methamphetamine.

Woodland also cites text messages examined by investigators that show at least a half-dozen exchanges between Ortega and Richardson where they discuss buying or leaving fentanyl and methamphetamine around the house, including leaving drugs “on the table” and “on the washer” for Richardson to consume.

One message reportedly showed Ortega telling Richardson that he left a bong, which investigators allege was used to smoke methamphetamine and fentanyl, “in a bag hanging on (Winter’s) stroller.”

The affidavit also cites investigators conclusion that Ortega was the primary drug supplier for Rayo and Richardson, combined with the transactional record between them, “show circumstantially that the drugs which killed (Winter) came from Phillip Ortega.”

Vitale is accused of aiding and abetting Ortega’s activities.

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Ortega and Vitale “assumed duties of care as W. Doe’s babysitters and roommates. They were aware that W. Doe was regularly exposed to narcotics,” Woodland wrote, using a placeholder name for Winter. “Yet, they did nothing to prevent W. Doe’s exposure to dangerous drugs and instead condoned it.”

Authorities allege that the night of Aug. 12, Richardson and Rayo waited “at least 12 hours” after baby Winter died before calling 911, and that when emergency responders arrived at their home they found the infant on the bed “covered with a rug,” and that rigor mortis had already set in.

The murder charges against Rayo and Richardson are based in part on a San Jose Police Department investigation that found photos and videos showing the parents “recklessly smoking narcotics” while holding the baby or in her presence. Police also reported finding fentanyl in white chunky powder on a nightstand, on a scraping tool on the master bedroom desk and on another scraping tool found on the rug underneath the child.

The district attorney’s office contends that murder charges were appropriate because of the parents’ “conscious disregard for human life.”

This is a developing story. Check back for updates.