Ortega v. Superior Court

Filed 11/2/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT PHILLIP ORTEGA, H053303 (Santa Clara County Petitioner, Super. Ct. No. C2405370) v. THE SUPERIOR COURT OF SANTA CLARA, Respondent, THE PEOPLE, Real Party in Interest. Petitioner Phillip Ortega is currently charged with implied malice murder, felony child endangerment, and possession of fentanyl for sale. The charges stem from the death of a 19-month-old child who ingested drugs of the kind sold by petitioner and used by him and his three adult housemates, including the child’s mother and father. Petitioner seeks to vacate the order holding him to answer on the murder charge. As we will explain, despite clear evidence of petitioner’s conscious disregard for human life, we conclude as a matter of law that his own actions in providing drugs to the parents were too remote from the parents’ life-endangering conduct to support prosecuting petitioner for implied malice murder.  I. BACKGROUND A. PRELIMINARY HEARING EVIDENCE Petitioner lived in a house with his girlfriend Paige Vitale as well as Derek Rayo and Kelly Richardson, the parents of 19-month-old Winter Rayo. 1 All four adults used drugs, including fentanyl and methamphetamine. Petitioner was a drug dealer and supplied most of the fentanyl used by the housemates, who typically smoked the fentanyl. The parents occasionally obtained or attempted to obtain drugs from other sources. Other people would also visit and use drugs at the house. There was drug paraphernalia in the house, and petitioner would sometimes leave small quantities of drugs in adult-accessible locations for Rayo and Richardson to use. Petitioner kept larger quantities of drugs in a locked and hidden container. Rayo’s and Richardson’s shared bedroom and attached bathroom were messy, with drug paraphernalia in the attached bathroom. The bedroom petitioner shared with Vitale was tidier. Petitioner and Vitale occasionally watched Winter while Richardson was at work, although Rayo did not work and was usually home with Winter. Petitioner had a good relationship with Winter and said he loved her. Winter was fussy on August 11, 2023, the night before she died. Rayo and Richardson brought her to petitioner’s bedroom and asked him to calm her down. Late that night, petitioner texted a customer about a sale and said they could meet at a nearby hotel. Petitioner and Vitale checked into that hotel shortly after 3:00 a.m. on August 12. Vitale had several missed calls from Rayo shortly before 1:00 p.m. on August 12. All four adult housemates were initially charged with murder in connection with 1 Winter’s death. At the preliminary hearing, Vitale was held to answer for possession of fentanyl for sale but was not held to answer for murder; a count initially charging her with felony child endangerment was certified as a misdemeanor. Petitioner has notified this court that during the pendency of this writ proceeding, Rayo and Richardson were both convicted by jury of second degree murder. 2  Petitioner and Vitale returned to the house around 2:45 p.m. on August 12. Vitale later said Winter was already dead when they arrived at the house. Petitioner and Vitale then left the house in Richardson’s car; petitioner told Vitale “that they needed to get some clean urine.” They went back to the hotel shortly after 4:00 p.m. Rayo and Richardson called 911 at 11:09 p.m. on August 12. They later said they waited so long to call because they knew Rayo would be arrested on an outstanding warrant and wanted to grieve together first. When paramedics arrived, Rayo seemed “frazzled” and Richardson seemed “hysterical.” Rayo said they did not know what was wrong with Winter and told the paramedics to go to a bedroom in the back of the house, but he did not show them where to go or go with them. The paramedics found Winter on Rayo’s and Richardson’s bed, wrapped in a pink shag rug, with one leg hanging off the side of the bed. From the state of her body, it was clear she had been dead for some time. The paramedics believed she had been dead for about 12 hours by the time they found her. The coroner estimated that she had died between 5:30 a.m. and 5:30 p.m. on August 12. Rayo later said that he and Richardson had last seen Winter alive around 4:00 or 5:00 a.m. on August 12; that they went to sleep for 12 hours; and that when they woke up, Winter was not breathing. The cause of Winter’s death was combined fentanyl, fentanyl metabolite, and methamphetamine toxicity. The methamphetamine and fentanyl would each have been lethal on their own, and Winter would likely have died within minutes of ingesting the fentanyl. Winter had ingested the drugs orally, and her stomach contained fentanyl and methamphetamine that had yet to be absorbed into her bloodstream at the time of death. Her stomach contents included undigested food and white granules. The granules were consistent with Winter having ingested pills, but the coroner could not say whether ingesting loose powder would likewise result in granules. Petitioner sold fentanyl in the form of powder compressed into “little bricks or cubes,” as Vitale described it. 3  Rayo and Richardson gave inconsistent responses to officers who arrived at the scene on the night of August 12. In their bedroom on a shelf about three feet above the floor were a bowl of ramen; an intact Clonazepam pill (not sold by petitioner); chunks of fentanyl; and remnants of loose powder not collected for testing. Under or next to Winter’s body was a tool with fentanyl residue, and another residue-covered tool was nearby. Richardson was found in possession of a urine sample. Both she and Rayo tested positive for fentanyl and methamphetamine after blood draws taken around 9:30 a.m. on August 13. Text messages suggested they had acquired methamphetamine from Rayo’s cousin about a week before Winter’s death. Text messages and videos showed petitioner telling customers to be careful with fentanyl and warning them about the risk of overdosing. In one video found on petitioner’s phone, Rayo says: “we seen what we think was her fucking falling out … it gives me anxiety the fact the fucking just like life’s over, like life’s over, done with … she was not talking, she did not say a sound, and it was like right when she first started like, making a lot of noise and so she was doing stuff and like, she didn’t know to walk at the time and was just barely learning how to crawl.” Petitioner denied using drugs around Winter. He told investigators that Rayo and Richardson were not as careful as they should have been about using drugs around Winter. But at least one video showed petitioner using drugs in Winter’s presence, and another video showed Winter with a clip on her nose. A woman named K.J. 2 told investigators that a few days before Winter’s death, she had smoked fentanyl with petitioner in the house’s garage; when Vitale walked in carrying Winter, petitioner continued to smoke, telling K.J. he “did it all the time” and nothing bad would happen. K.J. said that when petitioner delivered fentanyl to her a few days later, he told her Winter had died. 2 Consistent with rule 8.90 of the California Rules of Court, we refer to this individual using her initials. 4  According to an investigator who interviewed K.J., she related “two stories about a baby dying”: “When she asked [petitioner] what happened, she told me that he was kind of rambling and telling stories. And the first story he said was that he wasn’t at the house and [Rayo] called him, and he went back to the house. The second story was that he was there, and he was upstairs when the baby overdosed, and they tried to revive the baby with meth.” The house petitioner shared with Rayo, Richardson, and Vitale had no second floor. The investigator asked K.J. “if she felt that [petitioner] was telling two stories of the same baby dying, or she felt there was possibly two babies he was talking about.” In response, K.J. said “there was another baby named Phoenix.” K.J. told the investigator “she was aware, and that multiple people had mentioned that [petitioner] was related to or involved with the death of Phoenix.” The investigator was aware that a baby named Phoenix had died in May 2023 and “there was a second story in the residence in which that baby was found dead.” 3 B. PRELIMINARY HEARING ARGUMENT AND HOLDING ORDER In a written brief, the prosecution argued Rayo was guilty of second degree implied malice murder “both by (i) committing the act that killed his daughter (i.e., using and keeping deadly drugs, i.e. fentanyl and methamphetamine, in her presence) and (2) [sic] failing to perform his legal duty as her parent to provide her with a safe living environment, which resulted in her death.” The prosecution argued petitioner had aided and abetted Rayo and was thus guilty of second degree implied malice murder. 3 In the return opposing the writ petition, the prosecution summarizes K.J.’s statements to the investigator as establishing that petitioner was present when Phoenix died of a fentanyl overdose a few months before Winter’s death and was involved in unsuccessfully attempting to revive Phoenix with methamphetamine. Petitioner has moved to strike what he describes as “false and wrongful claims” in the return. We have considered the preliminary hearing evidence itself, without relying on the parties’ interpretations of that evidence, and as we will explain have determined that petitioner is entitled to the relief he seeks. Petitioner’s motion is therefore denied as moot. 5  The prosecution wrote that petitioner “intentionally furnished Mr. Rayo and Ms. Richardson with the deadly drugs that killed Winter.” Under the prosecution’s theory, petitioner “thereby aided the parents in the life-endangering act that killed Winter – i.e., the parents’ use and possession of deadly drugs – and … did so with conscious disregard for human life, prioritizing making money over Winter’s life.” In argument at the hearing, the prosecutor added: “To address the causation argument, the act is providing fentanyl to the parents who were using it recklessly around their child. The fact that Winter would get into the fentanyl was foreseeable based on the personal observations beginning in 2023, and especially once Mr. Ortega and Ms. Vitale moved in with Mr. Rayo and Ms. Richardson. There is no intervening act that breaks the chain of causation, unless this court finds that the parents intentionally gave Winter drugs, which again, is not something that the court has evidence supporting.” The prosecutor confirmed that the prosecution’s “theory as to the second-degree murder charge as to Mr. Ortega … is not based on the duty aspect[]” but rather “the providing of fentanyl to the parents.” Emphasizing that petitioner “lived with the parents” and “had personal knowledge of their reckless, persistent, dangerous use of fentanyl around their child,” the prosecutor argued: “The floodgates of prosecution will not open and all dealers will not be charged, because this case is different … than your street-level dealer providing fentanyl to a buyer on the street.” Petitioner’s counsel argued that the prosecution had “not provided sufficient evidence even at a preliminary hearing to establish that anything that Mr. Ortega did caused the death of Winter Rayo” because no evidence showed how Winter came to have drugs in her system: “It’s a large amount of drugs. Those drugs don’t taste very good. It’s not something that a child would normally try to eat a lot of, especially both methamphetamine and fentanyl [¶] … [¶] [which] are not stored together. They were not done together at the same time. So I think there’s an argument that those drugs were given to her purposefully. And if the People can’t say that that’s not true, then … that’s a 6 break in the causal link.” Counsel also suggested the drugs Winter ingested could have come from anyone, because “[t]his was a drug house”; the fentanyl found next to the bed “is a pill [and] [t]he evidence is that Mr. Ortega sold powder fentanyl”; and because petitioner had no duty of care toward Winter, he could not be liable for what Rayo and Richardson did with the drugs he supplied to them. The magistrate found the evidence showed petitioner was in possession of fentanyl in the hours before Winter’s death and that it was reasonable to infer that the housemates used fentanyl at that time. The magistrate said there was no evidence that petitioner left drugs where Winter could reach them, but added: “I think there’s a reasonable inference that fentanyl -- again, maybe not the methamphetamine, because I think that was the drug that was believed to have been supplied by Mr. Rayo’s cousin, I think, but I think there’s reasonable inference that can be drawn that the [fentanyl] that ended up in Winter’s system came from Mr. Ortega, and he knew that Mr. Rayo was reckless in his use of the drugs. And Mr. Ortega, frankly, smoked around Winter himself. There’s at least a video of that. [¶] … [¶] So again, I think that Mr. Ortega clearly loved Winter, but he did not protect her, and thus, by not protecting her, and providing the [fentanyl] that I think ended up in her system on the night that she died of acute fentanyl and methamphetamine toxicity, that he did aid and abet in her death.” In declining to hold Vitale to answer for murder or felony child endangerment, the magistrate stated in part: “I don’t think that there’s really any question that she knew fentanyl was deadly. … But I don’t find that the evidence establishes that she really committed acts that would likely cause Winter death. There’s no evidence that she smoked around Winter; that she used drugs around Winter. There’s evidence that she kept her room clean, that she kept her drugs locked up; so I just don’t find that there’s the same facts that would permit, even at a probable cause level, of holding on count 2” (referencing the child endangerment count). 7  C. MOTION TO SET ASIDE THE INFORMATION After being held to answer, petitioner moved to set aside the information and dismiss the murder and child endangerment charges under Penal Code section 995. Regarding petitioner’s liability for murder as a direct perpetrator, the motion argued there is no evidence that anything he did proximately caused Winter’s death and there is no evidence that petitioner supplied the fatal fentanyl or methamphetamine. Petitioner argued that Winter’s gastric contents were consistent with having ingested pills, but he dealt only powder. He suggested Rayo and Richardson must have had other dealers, because there was a Clonazepam pill next to the bed and petitioner did not sell that drug. Petitioner noted there was evidence of Richardson buying methamphetamine from another dealer, and anyone who came into the house could have left behind the drugs Winter ingested. Petitioner also argued that because “there is no actual evidence of how Winter Rayo came to ingest both the fatal methamphetamine and the fatal fentanyl, the prosecution is left with only theories, which are not evidence.” According to petitioner, there was no evidence of actual methamphetamine in the bedroom when items were collected after Winter’s death and “conjecture that Winter somehow got into two separate stashes of drugs (meth and fentanyl), and ate so much of both as to yield the forensic examiner’s results, requires a level of speculation that borders on imagination or fantasy and defies common sense.” Petitioner suggested that “a parent might administer fentanyl in food as a horrifically misguided effort to calm a screaming child” and “could simultaneously administer methamphetamine in the child’s food as well, with another fatally misguided belief that some meth would counteract the greatest dangers of the fentanyl.” He argued that “the prosecution had the burden of producing evidence of the absence of an independent intervening cause, in order to be able to produce evidence of the element of proximate causation by Mr. Ortega” and “Mr. Ortega had no burden of producing evidence that one of the parents administered 8 fatal doses of meth and fentanyl to their daughter; rather, the prosecution had the burden of producing evidence that neither did.” Petitioner also argued that even if one “follow[s] the prosecution’s theory (that Winter Rayo must have eaten fentanyl and methamphetamine sold by Mr. Ortega which killed her, without an independent intervening act by the parents that would break any theoretical chain of causation to Mr. Ortega)” he still cannot be guilty as a direct perpetrator. As to implied malice murder as an aider and abettor, petitioner argued there was no evidence he “knew that the actual perpetrator (whether Rayo or Richardson) was committing the life-endangering act – i.e., the act of permitting Winter to access methamphetamine and fentanyl”—much less that he intended to help the actual perpetrator engage in that act. According to petitioner, there was no evidence of how Rayo and Richardson stored fentanyl and methamphetamine in their bedroom; all of the cell phone videos showed their bedroom door was closed, and petitioner and Vitale both said they never went into that bedroom. If “Rayo and Richardson stored their drugs in a place more accessible to a 19-month-old,” he argued, “there is no evidence that Mr. Ortega knew it, and if (hypothetically) he had known it or suspected it, there is no evidence that he assisted Rayo or Richardson in it.” Petitioner also argued he could not have “aided and abetted Rayo or Richardson in leaving out fatal quantities of both methamphetamine and fentanyl at the time Winter died” because he was at a hotel at that time. The prosecution opposed the motion based on sufficient evidence of petitioner proximately causing Winter’s death by supplying the fatal fentanyl coupled with the reasonable foreseeability of Winter ingesting it. The prosecution linked proximate cause to petitioner’s having sometimes left fentanyl around the house himself; noted evidence that petitioner also supplied methamphetamine to the housemates (and even if he did not, the fentanyl alone was sufficient to kill Winter); and pointed out that there is no need to determine which of the concurrent causes of death was the primary cause. The prosecution urged that the court could infer Winter’s death was foreseeable to petitioner given the 9 evidence that he was aware of the dangers of fentanyl; he lived with Rayo and Richardson and observed their reckless behavior while using fentanyl; and a video showed petitioner being told by Rayo about a female baby (presumably Winter) non-fatally overdosing in the past. As to petitioner’s “claims that the People have the added burden of proving the absence of an intervening cause,” the prosecution denied there was any “requirement that the People posit and eliminate all possibilities like [Ortega] suggests.” In reply, petitioner disputed the prosecution’s assertion that he had mischaracterized the burden of proving the absence of an intervening cause. “At a preliminary hearing, the prosecution has the burden of providing evidence of proximate causation since it is part of the actus reus element of murder,” petitioner argued, “just as it has the burden of providing evidence of every element of their charged crimes.” Petitioner noted that if “there is an independent intervening cause, then there is no proximate cause” and the prosecution therefore “has the burden of providing evidence at a preliminary hearing that there is no independent intervening cause.” He summarized “the chain of legal analysis” by stating: “The People must produce evidence of every element of a charge at a preliminary hearing. Proximate cause is an element of a charge of murder. If the People fail to produce evidence of proximate cause at a preliminary hearing, then they have failed to produce evidence of an element of the charge. And if they fail to produce evidence that there was no independent intervening cause, then they have not produced evidence of proximate cause. That is what has happened here.” The trial court denied the motion, stating in part: “I don’t believe that Mr. Ortega’s knowledge about who lived in the house or his knowledge of the house or that Winter was present is relevant to show in any way that Mr. Ortega had a duty of care to Winter, but just to show his knowledge of who was there and what other people were in proximity. … I was trying to ask about of, you know, it is -- is it foreseeable when someone sells drugs with [f]entanyl that the person who takes them might die, and then, is it reasonably foreseeable that that person you sold to might share with someone else and that person that was shared 10 with might die? How many, how many people is it reasonably foreseeable would be present?” The court acknowledged “a factual dispute as to what occurred” but said “there is evidence to support the position that the People have taken, and I think that in the light -- under the, the standard the Court has to apply, there is sufficient evidence for the charges that currently exist.” This court issued an order to show cause why petitioner is not entitled to the requested relief as to the murder charge. The trial court has temporarily stayed trial proceedings pending the outcome of the writ proceeding. II. DISCUSSION A. STANDARD OF REVIEW In determining whether to grant the petition for a writ of prohibition, we directly review the magistrate’s holding order rather than the trial court’s decision on the motion to set aside the information. (See People v. Laiwa (1983) 34 Cal.3d 711, 718.) An information will not be set aside “if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.” (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.) There must be some evidentiary showing as to each element of the charged crime, but it may be satisfied through circumstantial evidence supporting reasonable inferences by the magistrate. (Williams v. Superior Court (1969) 71 Cal.2d 1144, 1148.) We independently review any supporting legal conclusions reached by the magistrate. (People v. Superior Court (Mendez) (2022) 86 Cal.App.5th 268, 277.) B. IMPLIED MALICE MURDER Murder is the unlawful killing of a human being with malice aforethought. (Pen. Code, § 187, subd. (a).) “Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder.” (People v. Knoller (2007) 41 Cal.4th 139, 151 (Knoller).) The requisite malice may be express or implied. (Pen. Code, § 188, subd. (a).) Malice is implied when the defendant, 11 while not intending to kill, nonetheless deliberately performs an act that proximately causes the victim’s death, despite knowing that the natural consequences of that act are dangerous to human life. (See People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).) Without proximate cause, a person cannot be said to have directly perpetrated implied malice murder. (See Id., at p. 989.) “ ‘To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical.’ ” (People v. Jennings (2010) 50 Cal.4th 616, 643 (Jennings).) “ ‘ “ ‘When the conduct of two or more persons contributes concurrently as the proximate cause of the death, the conduct of each is a proximate cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the time of the death and acted with another cause to produce the death.’ ” ’ ” (Ibid.) If “ ‘the jury finds that without the criminal act the death would not have occurred when it did, it need not determine which of the concurrent causes was the principal or primary cause of death.’ ” (Ibid.) A person who cannot be guilty of implied malice murder as a direct perpetrator may still be guilty of implied malice murder as an aider and abettor. “Aiding and abetting is not a separate offense but a form of derivative liability for the underlying crime.” (People v. Gentile (2020) 10 Cal.5th 830, 843 (Gentile).) Guilt as an aider and abettor is “based on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) “An aider and abettor must do something and have a certain mental state.” (Ibid.) Implied malice “has both a physical and a mental component.” (People v. Patterson (1989) 49 Cal.3d 615, 626.) “The physical component is satisfied by the performance of ‘an act, the natural consequences of which are dangerous to life’ ” (ibid.) in that the act involves a high degree of probability that it will result in death. (Reyes, supra, 14 Cal.5th at p. 989, citing Knoller, supra, 41 Cal.4th at p. 152; see CALCRIM No. 520.) “Although an act that will certainly lead to death is not required, the probability of death from the act must be more 12 than remote or merely possible.” (People v. Cravens (2012) 53 Cal.4th 500, 513 (conc. opn. of Liu, J.).) The mental component requires that the defendant “ ‘knows that his conduct endangers the life of another and ... acts with a conscious disregard for life.’ ” (Patterson, at p. 626.) In the context of aiding and abetting an implied malice murder, “conscious disregard for life” is distinct from the natural and probable consequences theory of liability for murder that was eliminated by Senate Bill No. 1437 (2017–2018 Reg. Sess.). Under that now- invalid theory, an aider and abettor need not have personally acted with malice to be guilty of murder. (Gentile, supra, 10 Cal.5th at p. 847.) Yet Senate Bill 1437 does not preclude aiding and abetting liability for murder where an aider and abettor does possess malice aforethought, which may include subjectively appreciating a danger to life and consciously disregarding it. (Id. at p. 848.) After Senate Bill No. 1437, “an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.” (Id. at p. 850.) Unlike reckless indifference to human life which makes an aider and abettor eligible for the death penalty or life without the possibility of parole according to People v. Banks (2015) 61 Cal.4th 788, conscious disregard for human life “ ‘requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less.’ ” (People v. Johnson (2016) 243 Cal.App.4th 1247, 1285, citing Knoller, supra, 41 Cal.4th at p. 143.) In contrast to implied malice murder by a direct perpetrator, where the actus reus is the commission of the life-endangering act itself, the actus reus for implied malice murder by an aider and abettor “includes whatever acts constitute aiding the commission of the life endangering act.” (People v. Powell (2021) 63 Cal.App.5th 689, 713 (Powell).) To be liable for implied malice murder as an aider and abettor, a defendant must aid the commission of the life-endangering act itself, not merely the result of that act. Among other elements, this requires “proof of the aider and abettor’s knowledge and intent with regard to the direct 13 perpetrator’s life endangering act,” the relevant act being the act that proximately causes death. (Reyes, supra, 14 Cal.5th at p. 991.) Thus the mens rea required of an aider and abettor of implied malice murder is knowledge that the direct perpetrator intends to commit the life-endangering act; intent to aid the perpetrator in the commission of that act; knowledge that the act is dangerous to human life; and acting with a conscious disregard for human life. (Powell, at p. 713.) In other words, murder on a theory of aiding and abetting requires that “ ‘the aider and abettor ... know and share the murderous intent of the actual perpetrator.’ ” (Gentile, supra, 10 Cal.5th at p. 850.) Decisional law on aiding and abetting implied malice murder is presently limited because Senate Bill No. 1437 only recently eliminated the natural and probable consequences doctrine for second degree murder, “which was easier to prove.” (Powell, supra, 63 Cal.App.5th at p. 713, fn. 26.) The most recent California Supreme Court case to consider the issue is People v. Collins (2025) 17 Cal.5th 293 (Collins), in which a mother was convicted at trial of murdering her two-month-old son based on her failure to protect him from his father’s fatal physical abuse. The mother was in another room when the abuse occurred but was aware that the father had been physically abusive in the past, although she initially denied as much when interviewed by investigators. Although the Collins court confirmed that liability for implied malice murder, whether as a direct perpetrator or an aider-abettor, “may be based on a ‘negative act’—a willful omission or failure to act—where there is a duty to act” (Id. at p. 308), the court nonetheless reversed the mother’s conviction. As the Supreme Court explained: “For murder liability to attach to a parent as an aider and abettor based on their failure to protect, the parent must knowingly fail to protect their child from the life-endangering act for the purpose of facilitating that life-endangering act and such failure to act must in fact assist in the commission of the life-endangering act.” (Collins, supra, 17 Cal.5th at p. 312.) The Supreme Court saw no evidence that the mother “knew with substantial certainty that [the father] intended to commit the life-endangering act … before or during [his] commission of that act” or that she “knew [the father] was 14 committing a life-endangering act prior to or during its commission.” (Id. at pp. 312–313.) Evidence established that the mother knew the father had used methamphetamine six hours earlier, had been angry at her in the morning, had destroyed her cell phone, and had abused the baby in the past. (Id. at pp. 300–304.) But there was “no evidence supporting a reasonable inference that [the mother] intended to aid [the father] in his commission of the life-endangering act.” (Id. at p. 317.) Addressing the mother’s initial dishonesty when interviewed by investigators, the Supreme Court concluded that “given its nature and the point at which it occurred, it does not provide a reasonable inference that [the mother] intended to aid and abet [the father’s] life-endangering act prior to or during the commission of that act.” (Id. at p. 318.) Because it found the evidence of the necessary mens rea insufficient, the Supreme Court did not go on to determine whether the mother “committed an omission that was sufficient to establish the actus reus required for aiding and abetting implied malice murder.” (Collins, supra, 17 Cal.5th at p. 318.) The court did, however, note that the mother could not be liable for implied malice murder as a direct perpetrator either. Although it could be inferred that the mother “knew to a substantial degree of certainty that [the father] might commit an act of serious, but nonlethal, abuse based on her knowledge of [the father’s] state and having witnessed his past acts of abuse,” by the same reasoning already discussed, “there was insufficient evidence that [the mother] subjectively appreciated her failure to act was life endangering, because she had no reason to know to any substantial degree of certainty that [the father] would commit a life-endangering act” while she was in another room. (Id. at p. 321.) And given the insufficient evidence of mens rea for direct perpetrator liability, the Supreme Court concluded it “need not address the remaining elements of proximate causation and the objective ‘ “ ‘high degree of probability that it will result in death’ ” ’ element.” (Id. at p. 322.) 15  C. PETITIONER’S POSSIBLE LIABILITY FOR IMPLIED MALICE MURDER The magistrate held petitioner to answer for implied malice murder on grounds that “by not protecting [Winter] and providing the [fentanyl] that I think ended up in her system on the night that she died of acute fentanyl and methamphetamine toxicity, that he did aid and abet in her death.” Petitioner contends the magistrate’s theory of implied malice based on breaching a duty to protect is refuted by Collins because petitioner was not merely “in another room when one or both of Winter’s parents did whatever they did that enabled her to ingest the fatal drugs, he was miles away.” And he notes that unlike the mother in Collins, he did not have the legal duties of a parent. “Even if a person in Philip Ortega’s position had been one of Winter’s parents who could have been theoretically liable for her death on a failure-to-act theory because of the parental duty toward a child,” petitioner argues, Collins underscores that “liability for murder on a failure-to-protect theory is appropriately reserved for individuals who actually know to a substantial degree of certainty that a life-endangering act is occurring or is about to occur and failed to act in conscious disregard for life.” (See Collins, supra, 17 Cal.5th at p. 310.) The prosecution counters that this case presents a “far different scenario” because petitioner did not simply fail to protect Winter but “actively did something” when “he provided the drugs to Winter’s parents that killed her.” The prosecution further argues in its return that, although the apparent basis for the magistrate’s holding order was a finding that petitioner could potentially be guilty of implied malice murder as an aider and abettor, the preliminary hearing evidence was sufficient to prosecute petitioner for murder as both an aider and abettor and a direct perpetrator. We conclude that the required showing was not made here under either theory of implied malice murder. We acknowledge the minimal evidentiary showing necessary to support a holding order. We also acknowledge the strong evidence of petitioner’s awareness that his conduct posed a risk to Winter’s life, including a video found on petitioner’s own phone of Rayo describing an infant girl (presumably Winter) showing signs of a previous overdose. But 16 evidence of petitioner’s culpable mental state, however strong, does not reduce the burden to show petitioner’s culpable conduct. Independently considering whether petitioner can be held to answer as a direct perpetrator, we assume based on reasonable inferences from the preliminary hearing evidence that he was the source of the fentanyl Winter ingested. But it cannot be said that he proximately caused Winter’s death by providing fentanyl to her parents. The California Supreme Court has distinguished “acts that merely create a dangerous situation in which death is possible depending on how circumstances unfold” from acts that proximately cause death. (Reyes, supra, 14 Cal.5th at p. 989.) For example, in Reyes, the lower court too broadly identified conduct leading up to a fatal shooting as a life-endangering act that proximately caused death. There, the larger conduct involved a group of gang members including Reyes (and one of whom Reyes knew to be armed) riding bicycles into a rival gang’s territory and surrounding the victim’s moving car. (Id. at pp. 985, 989.) Defining the act that proximately caused the victim’s death as another gang member shooting the car’s driver, the Supreme Court found no substantial evidence that Reyes was guilty of murder as a direct perpetrator. (Id. at pp. 989, 991–992.) In homicide cases, “ ‘a “cause of the death of [the victim] is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death of [the decedent] and without which the death would not occur.” ’ ” (People v. Carney (2023) 14 Cal.5th 1130, 1138.) Petitioner’s sale of fentanyl may have contributed to Winter’s death, but her death was not a “natural” consequence of that act, because the chain of causation required an intervening act or omission by those responsible for her safety. The magistrate expressly found no evidence that petitioner personally left any drugs within Winter’s reach, and we see no such evidence in the preliminary hearing record. That suggests Winter died because someone other than petitioner allowed her to ingest lethal amounts of both fentanyl and methamphetamine, either of which would have been sufficient to kill her. The magistrate also expressly found that 17 while petitioner was the likely source of the fentanyl that Winter ingested, he was not the likely source of the methamphetamine she ingested. There is evidence that Rayo and Richardson obtained drugs from sources other than petitioner (including the methamphetamine that could have killed Winter on its own), and the parents presumably would have done so whether or not petitioner supplied them with fentanyl. We need not depart from basic causation principles to guard against any culpable individual escaping responsibility for their conduct. (See Jennings, supra, 50 Cal.4th at p. 672.) Indeed, even if petitioner cannot be prosecuted for murder based on providing the fentanyl that ultimately played a role in Winter’s death, others can be prosecuted for murder (as Rayo and Richardson have been) based on an independent life-endangering act or nonconcurrent cause of death (i.e., allowing Winter to ingest drugs, or failing to protect her from doing so). Nor should the abhorrent nature of petitioner’s apparent disregard lessen the causation standard applicable to implied malice murder as a direct perpetrator. The life- endangering act and intent, though operating jointly, are separate elements which both must be satisfied. We also do not find support in the preliminary hearing evidence for the magistrate’s conclusion that petitioner could be guilty of murder as an aider and abettor. The Supreme Court emphasized in Reyes that “implied malice murder requires attention to the aider and abettor’s mental state concerning the life endangering act committed by the direct perpetrator, such as shooting the victim” and the lower court “should have asked whether Reyes knew that [the direct perpetrator] intended to shoot the victim, intended to aid him in the shooting, knew that the shooting was dangerous to