Note: This story was edited Aug. 8 to correct the method of Cabacungan’s conviction.
The jury is out on whether a fentanyl sale could result in murder if the buyer overdoses.
Closing arguments in a San Bernardino trial were heard Aug. 3.
If convicted of murder, Bryan Anaya-Esquivel would be the second known murder conviction for a fentanyl drug sale in the state.
His trial could set precedent in prosecutors’ fight against fentanyl deaths.
In closing argument, prosecutor Deborah Ploghaus urged the jury to convict on second degree murder, and, if the murder charge does not stick, to acquit Anaya-Esquivel instead of convicting him of the lesser charge of involuntary manslaughter.
“Every time a person sells fentanyl, they are taking a gamble on a person’s life,” Ploghaus said.
Public defender Anthony Kimbirk urged the jury to convict on involuntary manslaughter, saying that a murder conviction in this case would be out of line with established precedent.
“It’s only a sales case. There are consequences for that sale. But those consequences aren’t murder,” Kimbirk said.
The sale
Most of the facts of the case are not in question.
Anaya-Esquivel, who was 18 years old at the time of the drug deal, marketed fentanyl-laden Percocet pills, known as M-30s, through the photo messaging app SnapChat. He began selling them in March 2021, Ploghaus said.
He would sell about $10 a pill, and move 100 pills a week, she said.
Anaya-Esquivel’s photos posted on SnapChat clearly said that the Percocet had fentanyl.
Chevy Coriveau, a 17-year-old, said he wanted to buy some. This would have been Coriveau’s third purchase from Anaya-Esquivel.
Ploghaus and Kimbirk both called Coriveau addicted. Months before his death, Coriveau had posted on Facebook that he had overdosed and “died seven times before he was stable.” That overdose was from half a pill, Kimbirk said.
On Easter Monday, April 5, 2021, Ring security footage shows Coriveau buying the pills outside his house from a car.
Kimbirk contested that Anaya-Esquivel was the driver of the car, and not the person in the passenger seat who conducted the transaction with Coriveau. Ploghaus argued that Anaya-Esquivel was in the passenger seat, and someone else was driving.
Photo evidence of the bag taken by Coriveau shows that he consumed three of seven pills before he fell asleep that night. His girlfriend had testified that Coriveau often takes M-30s before going to sleep. He overdosed that night, while sleeping.
Anaya-Esquivel was caught after police messaged him from Coriveau’s SnapChat account, asking to meet up for another sale.
Sole operator or accomplice
The only other fact brought into question during closing argument was whether Anaya-Esquivel was the sole operator of the SnapChat account, and therefore if he was the one who made the deal to sell the M-30s to Coriveau.
Kimbirk said that Coriveau’s phone rang with a call from the SnapChat account Anaya-Esquivel ran while Anaya-Esquivel was in jail and unable to make the call. Ploghaus said the call was made by Anaya-Esquivel’s girlfriend, who was trying to locate him, and not from a joint operator on the account.
Kimbirk said that the questions of the second person in the car and whether there was a second operator of the Snapchat account should prevent the jury from concluding beyond a reasonable doubt that Anaya-Esquivel made the sale.
Murder for a sale?
The jury’s decision could set precedent for charging fentanyl dealers with murder, a policy change that’s being discussed across the state.
Nathaniel Cabacungan pleaded guilty to murder in Placer Superior Court July 7, after he sold drugs to a 15-year-old that died. The Placer County District Attorney’s Office claimed the conviction was the first in the state.
A California law that would explicitly warn dealers that they could face murder convictions was introduced by Sens. Rosilicie Ochoa-Bogh (R-Redlands) and Tom Umberg (D-Santa Ana). The bill failed to pass the Senate Public Safety Committee April 25.Similarly, prosecutors have been able to charge drunk drivers with second degree murder in California since a 1981 ruling.
Kimbirk argued that the correct conviction was for involuntary manslaughter. Michael Jackson’s doctor received an involuntary manslaughter conviction for prescribing pills that resulted in the artist’s death, he said.
The difference, Kimbirk said, is whether Anaya-Esquivel created the risk of death, or disregarded it.
He said that Coriveau caused his death by taking three M-30s, even though he had previously overdosed on just half a pill. Whether he did so intentionally, because he was diagnosed with depression and was not taking his prescribed Zoloft, or because he was reckless, didn’t matter, Kimbirk said.
His consumption of so many pills was an unusual event that changed anyone’s expectation of what would happen after a drug sale, Kimbirk argued.
“You should convict. But for involuntary manslaughter, not murder,” Kimbirk said.
“This interpretation of the law does not make sense,” he later said.
Implied malice required
To convict of murder, a jury needs to find something known as implied malice, according to both prosecutor and defense. Implied malice requires four elements:
- An intentionally committed act
- For the act to naturally and probably have dangerous consequences to human life
- For the defendant to have known the act was dangerous at the time
- For the defendant to have deliberately acted with reckless disregard for human life
The drug sale satisfied the first element, Ploghaus argued, since Anaya-Esquivel knew that he was selling fentanyl.
Known danger in fentanyl
There was debate over whether selling fentanyl has known dangerous consequences to human life. Ploghaus argued that fentanyl was known to be highly dangerous, while Kimbirk argued that there was no true understanding of the drug’s danger.
Ploghaus relied partially on testimony from law enforcement, and the prevalence of overdose-treatment Narcan, to prove that fentanyl was known to be dangerous.
“Every time a person sells fentanyl, they are taking a gamble on a person’s life,” Ploghaus said.
Kimbirk said that law enforcement officers working narcotics would over emphasize the prevalence and danger of fentanyl, because they see more of it than regular people, and that Narcan only shows that society has decided to make something less dangerous, not that the drug itself is more dangerous than other drugs.
Just one of the mixed pills Anaya-Esquivel was selling can kill a person, because the fentanyl is not evenly distributed throughout them, Ploghaus said. Selling fentanyl laced pills is a game of Russian roulette, where each pill could be the one that has a fatally high concentration, she said.
Kimbirk said that the true danger of fentanyl is not truly known.
In 2020, the last full year before Coriveau’s overdose, fentanyl was known to be responsible for 251 deaths in San Bernardino County, Kimbirk said. The Inland Counties Emergency Medical Agency responded to 1,658 overdoses, he said, meaning that 15% of fentanyl overdoses in the county caused death.
That does not include all the times fentanyl is bought and not used, or is bought and resold, or is bought and used and not resulted in an overdose, Kimbirk said.
Anaya-Esquivel supposedly sold thousands of fentanyl pills for around three months. If he is assumed to be the only dealer in the entire county who sold fentanyl over the course of a year, then 6% of fentanyl sales would result in death. After adding in all the other sales made by other dealers over the course of the year would result in a very low rate of death per sale, Kimbirk argued.
He continued to say that the county could come up with a reasonable number based on police, district attorney and hospital information, but decided not to because they wanted the jury to make a decision based on fear and emotion.
“If fentanyl is that obviously dangerous, so dangerous that everyone would know, Chevy would know,” Kimbirk said.
Fentanyl was responsible for 2% of American deaths in 2021, Kimbirk said.
“Does that seem likely?” he asked.
He repeated a statement from an expert witness, who said that just because someone buys fentanyl, it does not reasonably mean that it is going to cause a death that time.
Defendant’s knowledge of the danger
Counsel also argued for the third element of implied malice: Anaya-Esquivel’s understanding of fentanyl’s danger.
Ploghaus relied on comments Anaya-Esquivel made to law enforcement to say that he knew about the dangers of fentanyl:
“I don’t even know, man, I, I heard that you can just pop it (fentanyl) and die,” he said.
“Yeah, I think they’re really dangerous,” he said.
“School friends died off on fentanyl,” he said.
“Pure fentanyl can cause a person to die,” he said.
Anaya-Esquivel later recanted his statements in the interview while under oath, Ploghaus said. Then, he said that the drug’s danger was dependent on the abuse of it, and on each user’s tolerance. She told the jury it is up to them to decide whether he was lying to law enforcement or lying on the stand, but that he had “all the reason to lie while he’s on the stand.”
Reckless disregard for human life
Ploghaus said that Anaya-Esquivel did not care about human life at all, and only cared about money. She said that he knew that fentanyl causes death, but that he continued selling M-30s to addicts to get their money.
Kimbirk said that Anaya-Esquivel cared about human life, as shown by a conversation he had with Coriveau before he sold the drugs. Knowing that Coriveau had overdosed before, Anaya-Esquivel had asked him if he was sure he could handle it.
Jury deliberations
The jury began deliberating late Aug. 3. Trial began July 5.
San Bernardino Superior Judge Dan Detienne presided over oral argument.
Case No. FWV21002588
