SAN JOSE — Prosecutors say a man charged in the fatal fentanyl overdose of his 3-month-old daughter two years ago called a friend to secure fake urine for him before he called 911 after discovering his lifeless infant in his home.
The revelation was included in a filing this week from the Santa Clara County District Attorney’s Office that opposes David Castro’s application to have his felony charges dropped in favor of the Superior Court ordering him into a mental health diversion program.
Castro’s reported conduct on the fateful morning in May 2023, and a lengthy history of skipping and eluding drug treatment over the years, form the crux of prosecutors’ stance that he is not an appropriate candidate for his requested felony diversion relief.
Deputy District Attorney Maria Gershenovich contends that such diversion for Castro would eliminate any chance for justice for Phoenix Castro, who was one of the first infants in the Bay Area to fall victim to the scourge of fentanyl abuse seen across the country.
“Wiping this away is not justice for Baby Phoenix and her family,” Gershenovich said in an interview Wednesday. “We can’t understate what occurred and what the result was. We have this 3-month-old baby who had her whole life ahead of her. She should be 2 (years old) and walking and being a toddler.”
In Castro’s diversion petition, filed on his behalf by the county Alternate Defender’s Office, he is described as suffering from adjustment disorder with mixed anxiety and depressed mood. Castro’s attorney, Deputy Alternate Defender Mishya Singh, said Wednesday that her client’s case “aligns precisely with the purpose of mental health diversion,” and emphasized that Castro could still be subject to criminal charges under diversion if he does not fulfill its rehabilitation requirements.
“Mental health diversion exists because the law recognizes that many offenses stem from underlying mental health issues,” Singh said. “It reflects the very circumstances the Legislature had in mind when it emphasized treatment over punishment. Importantly, mental health diversion does not result in the immediate dismissal of charges; rather, it provides a structured path toward accountability and rehabilitation.”
Gershenovich said subsequent investigation after Castro was initially charged with felony child endangerment found that he lied to police about immediately calling 911 after finding Phoenix with blue-tinged skin and cold to the touch on the morning of May 13, 2023. An examination of his phone reportedly showed that Castro first called a friend to come to his San Jose home, and gave the friend cash to go to a local smoke shop and obtain fake synthetic urine, presumably to insulate him from a possible drug test in the wake of the infant’s death.
Only after the friend returned with the fake urine did Castro call 911 to report the discovery of his unresponsive infant, according to the prosecution filing. This new information, Gershenovich said, further supports her office’s position that Castro should not be eligible for mental health diversion.
“What this shows is that Mr. Castro, first thing that morning, was not thinking of Baby Phoenix. He was smart enough and calculated enough in that moment to concern himself first with obtaining fake synthetic urine. It ties with his history of not participating in treatment and dealing with the problem,” Gershenovich said. “What a reasonable parent would do, the second you might think something is not OK with a child, you run to your phone and call 911. That’s not what his first thought was. His first thought was he didn’t want to get in trouble.”
“For someone who acts this way when a 3-month-old baby is dead, to get diversion, that’s not justice,” she added. “This baby was 100 percent reliant on him. We cannot look at this in a vacuum. This baby is gone.”
But Singh argued the case is an illustration of Castro’s untreated issues leading to unfathomable consequences.
“Mr. Castro was expected to parent a vulnerable newborn without being provided the treatment he desperately needed. Giving him that treatment will meet his individual needs and serve the broader goal of public safety,” Singh said. “This tragic case is the result of unmet treatment needs; needs that mental health diversion is specifically designed to address.”
Another notable segment from the DA’s opposition filing draws a connection between Castro and two people prosecuted in the fentanyl overdose death of another South Bay infant, 18-month-old Winter Rayo, in August 2023. The filing cites investigators’ recovery of a video recorded by Castro in April 2023, a month before Phoenix died and four months before Winter died. The footage shows Castro’s kitchen table — which is covered by drugs, glass pipes, scales and torches next to baby wipes — occupied by at least three other people including Phillip Ortega and Paige Vitale.
Ortega, who is accused of supplying drugs to both groups, faces a murder charge alongside Winter’s father Derek Rayo in the county’s first murder prosecution for a baby’s fentanyl overdose. Vitale was initially charged with murder but after a preliminary examination her charges were reduced to a felony drug possession count and a misdemeanor child endangerment count.
Phoenix’s death spurred an overhaul and reorganization of the county Department of Family and Children’s Services after investigations, including by this news organization, found that the newborn infant was released from the hospital to Castro despite dire warnings from a social worker that she could die in his care. The agency’s former director resigned in January under heavy public scrutiny, including from his own staff.
The next court hearing for Castro’s diversion petition is scheduled for May 6.