SAN DIEGO — Testimony wrapped up Monday in the trial of a Rancho Bernardo man accused of getting drunk and falling asleep with a lit cigarette in his hand, sparking a condominium fire that killed his two children.
Henry Lopez, 39, is charged in the Oct. 28, 2017, deaths of 7-year-old Isabella Lopez and 10-year-old Cristos Lopez. He faces up to 14 years in prison if convicted of involuntary manslaughter, child endangerment and reckless fire starting.
Closing arguments in the trial are scheduled Tuesday morning at the downtown San Diego courthouse.
Deputy District Attorney Kyle Sutterley alleges that Lopez got drunk following an argument with his girlfriend, fell asleep and ignited a blaze in his bed. The prosecutor alleges that Lopez, upon waking to the condo ablaze around 3:15 a.m., tried to save himself by going past the children’s bedrooms, down the stairs and punching out a first-floor window to try and escape the flames.
He then went back upstairs and started pounding on the walls “for some reason,” 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, laid down on the floor and burned to death, sustaining burns on more than 80 percent of his body. Isabella went into her brother’s room, laid down on the bottom bunk bed and “fortunately never woke up” after passing out due to smoke inhalation, Sutterley said.
“A parent has a duty to care for, to protect and to sacrifice themselves if need be for their children,” Sutterley told jurors in his opening statement. “But on Oct. 28, 2017, the defendant, Henry Lopez, failed the children.”
Defense attorney Paul Neuharth Jr. alleges it was more likely that his client’s iPhone 6 caused the blaze while it was charging beneath Lopez’s pillow.
Neither cigarette butts, nor the phone, were found in the remnants of the blaze.
Sutterley said investigators located a drinking glass within the area where the fire started, which may have been used as a makeshift ashtray. Prosecutors say a similar glass full of 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 said there was no proof that a lit cigarette started the fire, with the only evidence of smoking inside the home coming from the defendant’s ex-wife, Nikia, 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 house, particularly due to his son’s asthma.
Wayne Whitney, an investigator with the San Diego Fire Rescue Metro Arson Strike Team, testified last week 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 cell phone was a possible cause of the fire, but said he didn’t believe it would have ignited the condo fire if it were under Lopez’s pillow, as a lack of oxygen would have smothered the blaze and kept it from spreading.
Neuharth emphasized that Whitney came to his conclusion despite no evidence that Lopez smoked in the home that day, while on the other hand, cell phone records proved the phone was in the condo, 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 Sutterley.
Lopez — who was hospitalized with serious burn injuries — had a 0.229 blood alcohol content when blood was drawn at a hospital less than two hours after the fire.