An El Paso County judge misapplied the law and allowed harmful information to be heard at the defendant’s trial, Colorado’s second-highest court concluded last week in reversing the convictions of Israel Santillan Lopez.

Further, the prosecution acknowledged Lopez was correct that District Court Judge Marcus Henson also omitted a key element of the crime of felony menacing when he instructed the jury. But because the Court of Appeals sided with Lopez for other reasons, it did not address the faulty instruction.

In February 2018, a judge issued a protection order against Lopez preventing him from contacting or harassing his girlfriend. Nevertheless, the two signed a lease in July of that year and moved into an apartment together. In October 2018, Lopez asked the girlfriend to move out.

On Oct. 10, the girlfriend became upset about a household issue and the verbal fight escalated into a physical one. According to her, Lopez dragged her, strangled her, punched and hit her and threatened to kill her while holding a shotgun. She lost consciousness two or three times and suffered a broken jaw.

In Lopez’s telling, the girlfriend attacked him first. She tried to shoot him with his shotgun, but he wrestled it from her. The girlfriend fled and Lopez also sustained injuries.

Prosecutors charged Lopez with several offenses, including assault, menacing, violating a protection order and possession of a weapon by a previous offender.

The defense attempted to bifurcate the trial, meaning the jury would first decide the outcome of the assault and menacing offenses, then it would hear about the protection order and weapon charges. Lopez’s attorneys argued that if jurors heard about Lopez being prevented from contacting the girlfriend or having a prior conviction, they could conclude he was more likely to commit the serious offenses because he had a bad character.

Also, they added, the presence of a protection order was not at all related to whether Lopez committed menacing or assault.

Although Henson agreed to separate the weapon possession charge from the others, he said he felt obligated to keep the remaining offenses together.

“There is obviously some prejudice” to Lopez, he acknowledged before denying the request. 

Lopez’s jury delivered a mixed verdict, convicting him of the lesser offense of second-degree assault and also of violating the protection order. Prosecutors dismissed the weapon charge and the jury never considered it.

On appeal, Lopez again argued Henson should have bifurcated the protection order charge because Colorado law and the criminal rules of procedure permit courts to do so when “justice so requires.” This was such a case, he maintained, because jurors were allowed to hear that a judge had already deemed Lopez a danger to his girlfriend by issuing the protection order.

The government defended Henson’s handling of the issue, albeit by relying on a legal doctrine that the Colorado Supreme Court has since repealed. The Colorado Attorney General’s Office also argued the jury’s acquittal on some charges and conviction on others showed jurors did, in reality, know how to keep evidence separate as instructed.

The Court of Appeals disagreed. A three-judge panel noted Henson himself had admitted there was “some prejudice” to Lopez by lumping the menacing and assault charges with the violation of a protection order.

“This suggests that the court recognized that because the protection order implicates prior criminality against the same victim in this case, evidence of the protection order is inherently prejudicial and likely to be improperly used as character evidence,” wrote Judge Terry Fox in the Sept. 15 opinion.

The panel was also unconvinced the jurors could keep the evidence and legal theories for the protection order separated from the other offenses. Fox noted the prosecutor told jurors Lopez “wasn’t even supposed to be in contact with (the victim) when he gave her the beating of her life.”

Because the protection order was legally irrelevant to whether Lopez injured his girlfriend, the comments “were highly prejudicial,” Fox added.

Lopez also contended his conviction for felony menacing with the shotgun could not stand because Henson actually gave the jury instructions for misdemeanor menacing – leaving out the key element for a felony that Lopez use a deadly weapon. The attorney general’s office agreed this was a mistake, and asked the appeals court to give prosecutors the choice of trying Lopez again or simply letting Lopez stand convicted of a misdemeanor.

The appellate panel did not address the menacing instruction, as it agreed to reverse Lopez’s convictions based on the bifurcation error alone.

The case is People v. Lopez.