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San Diego man convicted of setting house fire that killed his two children says conviction was based on faulty evidence

Henry Lopez says investigators found no evidence of cigarette use that supposedly started the deadly fire and was likely started by his cell phone.
Credit: CBS 8
Henry Lopez

SAN DIEGO — A Rancho Bernardo man who was convicted of inadvertently setting the fire to his home that killed his two young children says the evidence used to convict him was made up and based on "junk science."

Henry Lopez, 42, made those claims in a newly-filed Petition for Writ of Habeas Corpus against the State of California. In it, attorneys for Lopez urge the state to overturn the conviction, alleging that prosecutors relied on circumstantial evidence which claimed that Lopez had been smoking in bed when in fact investigators did not find any cigarettes or ashtrays inside the home that night.

The October 27, 2017 fire

A neighbor first spotted smoke rising from Lopez's townhome located near Bernardo Center Drive and Regalio Lane at around 3 am on October 27, 2017.

The fire began at the right side of Lopez's bed before tearing through the upstairs and entering the room of his 10-year-old son, Cristos, where the boy and his 8-year-old sister Isabella were sleeping. When firefighters arrived the children were unconscious from smoke inhalation, and both were badly burned. Firefighters discovered Lopez lying unconscious at the top of a staircase. 

Despite attempts at resuscitation, both children died at the scene.

Laid to Rest: Funeral services for children killed in Rancho Bernardo condo fire

When Lopez awoke, he was visibly inebriated, tests later showed that his blood alcohol levels measured nearly .23 percent, almost three times the legal limit to drive.

Lopez spent the following two weeks in an induced coma.

Prosecutors later charged Lopez with child abuse resulting in death, involuntary manslaughter, and arson.

RELATED: Rancho Bernardo: Father charged in house fire that killed his 2 children

Trial of Henry Lopez

During the trial a fire investigator testified that he did not find any cigarette butts near Lopez's bed, nor did they find any ashtrays inside the home. The investigator did so, however, say that it was possible the filter turned to ash in the fire.

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Fire investigators did find, according to a subsequent appellate court ruling, "an empty pack of American Spirit cigarettes;...in the garage along with an empty plastic bottle of Canadian Mist whiskey and the glass cup filled with cigarette butts, as well as other smoking materials found elsewhere in the town-home."

Attorneys for Lopez argued that Lopez only smoked occasionally and always did so on his balcony. Instead, defense attorneys claimed the fire was likely started by his cell phone which was underneath Lopez's pillow.  

On September 16, 2019, a jury convicted Lopez of all charges. He was later sentenced to serve nearly 13 years in prison.

An appellate court later looked at the claims that Lopez's phone caused the deadly fire but ruled that the "iPhone malfunctioning was limited to Lopez’s equivocal statement to Burow that he sometimes kept the phone under his pillow. Lopez, however, was badly discredited in the interview, during which he lied about his consumption of alcohol the night of the fire."

The court denied Lopez's appeal.

Having exhausted his chance at appeal, Lopez's attorney is now going to the state in hopes of overturning the conviction. 

On June 17, attorney Charles Sevilla submitted a petition stating that Lopez's conviction "rests on subjective, equivocal and false expert prosecution opinions on the origin of the fire, to wit, the cigarette theory. There were no admissions, no witnesses, and no evidence of cigarettes, lighters, or ashtrays in the living quarters."

Instead, Lopez's attorney says that one expert witness came to his conculsion about the fire getting started by a cigarette without knowing that fire department investigators had brought a bottle with cigarette butts from the garage up to Lopez's room to compare it with another burnt bottle inside his room.

"The second expert...was a fire insurance investigator who testified he saw an ashtray full of cigarette butts in the bedroom and assumed it had been in the room all along. This helped him form his opinion of a cigarette as the fire's possible cause. He was unaware that the fire department investigators who preceded him by nine days found no such ashtray or cigarettes in the bedroom or anywhere within the house," reads the writ. 

By filing the petition to the state, Lopez's attorneys want the state to vacate the judgment and give prosecutors 60-days to retry Lopez. 

In a statement, the District Attorney's Office told CBS 8, "A San Diego jury convicted the defendant after hearing all of the evidence and we will fight to continue to hold him accountable for the loss of innocent children."

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