A new law could impact what happens in a criminal case that has gripped San Diego: Two young children, killed in a fire, after their father – who had allegedly been drinking – fell asleep in their home with a lit cigarette in his mouth.
Isabella Lopez, 7, and Cristos Lopez, 10, were killed in the fire on Oct. 28, 2017, at their father Henry Lopez’s two-story condo on Bernardo Terrace in Rancho Bernardo. According to prosecutors, Henry Lopez had passed out from drinking alcohol while smoking a cigarette just before the blaze sparked.
His attorney, however, claimed the Metro Arson Strike Team investigating the fire was lying and the fire could’ve been started by a cellphone charger.
The children were sleeping when the fire erupted.
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Isabella was found in the bottom bunk of a bunk bed next to a stuffed teddy bear and an open Bible; the little girl would soon die from smoke inhalation at a local hospital.
Cristos, who was found in his father’s bedroom, suffered burn injuries and smoke inhalation. The boy could not overcome his injuries and also died.
Henry Lopez was hospitalized after the fire.
The father was charged with five felonies involving the death of his children, including involuntary manslaughter, child endangerment and the reckless starting of a fire. He pleaded not guilty to all charges in December 2018.
At his preliminary hearing in February 2018, prosecutors said his blood-alcohol level was 0.26 percent when it was taken at the hospital.
According to court documents, Henry Lopez had allegedly threatened to burn down the family’s home weeks before the fire. In a temporary restraining order obtained by NBC 7, the children’s mother, Nikia Lopez, claimed her husband had texted her: “I will burn all of this (expletive) down,” during a conversation the pair were having about a missing mortgage payment.
At Henry Lopez’s preliminary hearing, Nikia Lopez testified that she had fought with Henry Lopez over a lit marijuana joint found next to a bed in the home.
Nearly one year ago – on Feb. 27, 2018 – after Henry Lopez’s preliminary trial, a judge decided there was enough evidence for him to stand trial in the death of his children. If convicted, the father could face 14 years in prison.
The case was supposed to go to trial in November 2018, but there were delays in court proceedings.
For now, Henry Lopez’s trial is set for this April.
However, if a judge decides a new law is relevant to this case, the family of the young victims is concerned this development could mean no trial – and no jail time – for Henry Lopez.
“We’re all in a holding pattern,” Michael Codner, an attorney for Nikia Lopez, told NBC 7 in an exclusive interview Friday.
Codner said delays in high-profile criminal cases are not unusual but said the family is concerned about the latest continuance in proceedings.
Codner said Henry Lopez’s defense attorney asked for the continuance so he could take a look at a new law that went into effect on Jan. 1 that could work in the defendant’s favor.
According to Codner, the new law allows a judge to consider whether the defendant suffers from a serious mental disorder, including Post-Traumatic Stress Disorder. If that is the case, a judge could allow the defendant to be treated in the community, as long as the defendant is not considered a danger to the public.
Codner said Nikia Lopez and her family do not want any leniency for Henry Lopez.
“She does not believe he deserves any kind of break, whatsoever,” he added. “She absolutely does believe that he does deserve a significant amount of prison time at this point.”
After 10 years of marriage and raising two children together, Codner said Nikia Lopez is certain Henry Lopez does not suffer from a legitimate mental illness. However, Codney said she is sympathetic to those who do suffer from mental illness and feels that, in this case, the law would be exploited if it were to help Henry Lopez.
Codner said Henry Lopez did serve in the military but was never deployed. He said Henry Lopez’s time in the military may be the basis for the defense’s possible PTSD argument, but he can’t be sure.
Meanwhile, as the family awaits answers on what comes next for the case in court, the pain of losing their two young loved ones lingers.
Sophia Lopez, Isabella’s and Cristos’ great-grandmother, said she can still hear them and remember them playing in her backyard.
“They go down the stairs right there, and they run over there,” she recalled. “I think about these children every day – all day.”
Until the criminal case is over, Sophia Lopez told NBC 7 the nightmare, for her family, “goes on and on” and there will be no peace of mind.
“I always tell Nikia, ‘God knows what he’s doing. When it’s time for things to settle down, or things to get worse, God will handle it,’” said Sophia Lopez.
Codner said that with every delay, Nikia Lopez’s fragile state is rattled once more.
In the meantime, Henry Lopez’s attorney, Paul Neuharth, told NBC 7 that based on the law, he is anticipating filing a motion on behalf of his client. The motion will be sealed because, according to Neuharth, it will detail traumatic, personal events in Henry Lopez’s life that pre-dated the deadly fire.
Neuharth said it’s inappropriate for him to comment further on a case where motions and a trial are pending.