Filed 7/28/23 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA KELSEY CARPENTER, D081640 Petitioner, v. (San Diego County Super. Ct. No. SCN422556) THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. ORIGINAL PROCEEDING in mandate challenging an order of the Superior Court of San Diego County, Michael D. Washington, Judge. Petition denied. Brian J. White; Law Office of Amber Fayerberg and Amber Fayerberg for Petitioner. No appearance for Respondent. Summer Stephan, District Attorney, Linh Lam, Valerie Ryan, and Jennifer Kaplan, Deputy District Attorneys, for Real Party in Interest. Effective January 1, 2023, the Legislature enacted a new law providing immunity from criminal or civil liability for a person’s acts or omissions with respect to their pregnancy or pregnancy outcome, including “perinatal death due to causes that occurred in utero.” (Health & Saf. Code, § 123467, subd. (a).)1 As part of the same bill, the Legislature declared that an individual’s fundamental right of privacy regarding personal reproductive decisions includes “the right to make and effectuate decisions about all matters relating to pregnancy, including prenatal care [and] childbirth[.]” (§ 123462.) This case requires us to explore the dividing line between immune conduct relating to a person’s pregnancy or reproductive decisions and non-immune post-birth conduct allegedly causing the death of an infant who was born alive. The relevant facts are undeniably tragic. Kelsey Carpenter gave birth to a baby girl at home, alone, after deciding that she would not risk having her child removed from her custody as had happened with her two older children when they tested positive for drugs after being delivered at the hospital. She again used drugs during her pregnancy. After Carpenter’s daughter was born, the baby struggled to breathe, and Carpenter attempted to provide her with CPR. Carpenter also cut the baby’s umbilical cord but did not clamp it, and the umbilical stump continued to bleed. Carpenter bathed, diapered, clothed, and attempted to breastfeed the baby before seemingly passing out. When she woke up, her newborn daughter was dead. Before the new immunity provision went into effect, the People charged Carpenter with implied malice murder and felony child endangerment, contending that Carpenter intentionally chose an unattended at-home delivery, despite being warned of the dangers, in an effort to evade child 1 Undesignated statutory references are to the Health and Safety Code. 2 welfare services and at the risk of her daughter’s life. According to the People, Carpenter’s acts and omissions, including her failure to seek medical assistance after realizing her baby was in distress, caused the baby to bleed to death. The People presented evidence in support of the charges against Carpenter at a preliminary hearing, at the end of which the magistrate found the evidence sufficient to hold Carpenter to answer on the charges. Carpenter then moved to dismiss the information. By petition for writ of mandate, Carpenter now challenges the superior court’s order denying her motion to set aside the information for lack of probable …
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