SAN DIEGO COUNTY, Calif. — A state appellate panel Monday upheld the convictions for a man sentenced to more than a dozen years in prison for falling asleep with a lit cigarette in his hand, sparking a fire in a Rancho Bernardo condominium that killed his two children.
Henry Lopez was convicted of involuntary manslaughter, child endangerment and reckless fire-starting for the Oct. 28, 2017, fire that killed his 7-year-old daughter Isabella and 10-year-old son Cristos.
Deputy District Attorney Kyle Sutterley said during the trial that Lopez got drunk following an argument with his girlfriend, fell asleep and ignited a blaze in his bed.
Lopez's attorney, Paul Neuharth Jr. argued there was no evidence a cigarette caused the deadly blaze and that a defective cellphone was a far more likely ignition source.
Neither cigarette butts, nor the phone, were found in the remnants of the blaze.
Sutterley alleged that Lopez, upon waking to find the condominium ablaze around 3:15 a.m., went past the children's bedrooms on his way down the stairs and punched out a first-floor window to try to escape the flames.
He then went back upstairs and started pounding on the walls, then passed out from the smoke at the top of the stairs, where firefighters later found him, Sutterley said.
According to the prosecutor, Cristos walked into his father's burning bedroom, lied down on the floor and later died at a hospital of burns to more than 80% of his body. Isabella went into her brother's room, crawled into the bottom bunk bed and "fortunately never woke up" after passing out due to smoke inhalation, Sutterley said.
Though no evidence of a definitive ignition source was found in Lopez's bedroom, Sutterley said investigators found a drinking glass in the area where the fire started that may have been used as a makeshift ashtray.
Prosecutors said a similar glass filled with about 75 discarded cigarette butts was located in a trash can in the home's garage. However, no cigarette butts were found inside the glass in the bedroom.
Neuharth told jurors there was no proof that a lit cigarette started the fire, with the only evidence of smoking inside the home coming from his ex- wife, who said she once witnessed him smoking marijuana in his bed.
Lopez told investigators he only smoked on his outside patio and never inside the condominium, particularly due to his son's asthma.
Wayne Whitney, an investigator with the San Diego Fire Rescue Metro Arson Strike Team, testified that despite the lack of cigarette butts in the burned bedroom, he was able to make a "reasonable inference" that cigarettes sparked the fire, by way of Lopez's alleged smoking habits.
Whitney conceded that the cellphone was a possible cause of the blaze, but said he didn't believe it would have ignited the fire if it were under Lopez's pillow, as a lack of oxygen would have smothered the blaze and kept it from spreading.
Sutterley said the burns Lopez sustained on his back, arms and particularly his hand were more consistent with holding a lit cigarette, rather than a cellphone igniting beneath his pillow, which Sutterley argued should have caused burns to Lopez's head.
Neuharth emphasized that Whitney came to his conclusion despite a lack of any evidence that Lopez had smoked in the home that day, while on the other hand, cellphone records proved the phone was in the condominium, though it's unknown whether it was in Lopez's bedroom.
Wall outlets and candles in Lopez's bedroom were ruled out as potential causes of the blaze, as they were outside the area where investigators believe the fire began.
Smoke detectors in Lopez's bedroom and one of the children's rooms were unplugged or removed, according to prosecutors.
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