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March 12, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Hernandez

Colorado Court of Appeals

• Citations: None known
• Docket Number: 25CA0890

• Precedential Status: Non-Precedential

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (6.3K)

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Combined Opinion

25CA0890 Peo v Hernandez 03-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0890
El Paso County District Court No. 23CR4830
Honorable Dinsmore Tuttle, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Ashley Hernandez,

Defendant-Appellee.

ORDER AFFIRMED

Division I
Opinion by JUDGE MEIRINK
J. Jones and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 12, 2026

Michael J. Allen, District Attorney, Doyle Baker, Senior Deputy District
Attorney, Amanda Velazquez, Deputy District Attorney, Colorado Springs,
Colorado, for Plaintiff-Appellant

Christopher Gehring, Alternative Defense Counsel, Yona Porat, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellee
¶1 The People appeal the district court’s order dismissing

criminal charges against defendant, Ashley Hernandez. We affirm.

I. Factual Background

¶2 On August 2, 2023, Judge Diana May presided over a

preliminary hearing for a case involving Hernandez’s boyfriend,

Derrick Bernard. Judge May found probable cause at the hearing

but recused herself ten days later after learning that Bernard had

made certain comments about her. Specifically, Judge May had

received information that, during a series of inmate calls Bernard

had made to Hernandez on August 3, he discussed the case’s victim

and detectives working on the case. He also said the following:

It’s unrelated but I didn’t know ol’ dirty Dianna
[sic] May was a part of the compromised judge
list but after yesterday’s fiasco I’m sure she’s
on the recovered codex registry. That’ll be
taken care of too soon though. I’m just the
messenger shorty, I’m not the ringleader, not
by a long shot.

Hernandez was supposed to record and transcribe the

conversations, which she would later distribute to multiple people

involved in Bernard’s case. After learning about these

conversations, Judge May recused herself because she felt that “she

could not be unbiased due to being threatened by Bernard.”

1
¶3 Two months later, Bernard had another hearing. Courtroom

security video recorded a woman, later identified as Hernandez,

walking from the third-floor courtroom, where Bernard’s hearing

was held, to an elevator bay. While Hernandez waited for an

elevator, Judge May approached the elevator bay. Both entered the

same elevator; they were the only occupants. Judge May didn’t

know who Hernandez was. Hernandez confronted Judge May about

her involvement with and recusal from Bernard’s case.

¶4 Once the elevator reached the first floor, both women got

out — Hernandez left the courthouse, and Judge May immediately

went to security to report the encounter, relaying the following

information:

• An unknown woman confronted Judge May, telling her that

she was unethical and should have recused herself from

Bernard’s case.

• The woman’s demeanor was aggressive; her shoulders were

stiff; she was “hyper focused”; and her voice was “deliberate,

firm[,] and commanding.”

2
• Judge May told the woman that she was not allowed to

comment on the case and moved toward a side wall of the

elevator to put distance between her and the woman.

• Despite telling the woman that she couldn’t comment on the

case, the woman continued to confront Judge May, telling her

what happened in Bernard’s case was illegal and that he was

in custody because of Judge May.

• Judge May asked for the woman’s name, which the woman

didn’t provide.

• After Judge May told the woman to stop, the woman moved

closer and said, “I know your husband is a cop,” which led the

judge to believe the woman had researched her family and

made Judge May fearful.

Judge May later told the detectives that she approached security

because she felt threatened and was worried that the unknown

woman could be waiting for her outside.

¶5 At some point, Judge May obtained a printed version of a link

chart connecting people and institutions to Bernard’s case, which

she had with her during her interview with Detective Anthony

Nevarez, who was investigating the case. The chart was

3
presumably created by Bernard and alleged that the Colorado

Springs Police Department and some judges were corrupt. A

photograph of Judge May appeared in the chart with the words

“biased and prejudiced” above her photograph. Judge May also had

a photograph of Hernandez, which was given to her by security for

her safety following Bernard’s threats. Judge May told detectives

that she believed Hernandez was the unknown woman that she had

encountered in the elevator.

¶6 The same day as the elevator encounter, Bernard and

Hernandez had another inmate call. Hernandez told Bernard that

she was present for his hearing and that, after she left the

courtroom and waited for an elevator, she saw Judge May heading

towards the elevator. Hernandez recounted the conversation she

had with Judge May as follows:1

1 Although the audio recording from the elevator encounter was

included as a trial exhibit, the sound quality was poor and made
the conversation difficult to understand. The conversation was
transcribed based on the jail call recording, with Hernandez
speaking for herself and Judge May as she described the
conversation to Bernard. Detective Nevarez testified that, while not
“word for word,” Judge May’s recollection of the conversation and
the statements made in the jail call were, “for the most part, fairly
similar.” The district court relied on the transcription, and we do
too.

4
Hernandez: Judge Diana May?

Judge May: Oh yes.

Hernandez: Can you comment why you were
biased on the Bernard case?

Judge May: I can’t comment on that.
Commenting on that would be unethical.

Hernandez: No, what was unethical was you
taking that case knowing you were biased and
going through a whole preliminary hearing and
disturbing someone’s due process rights.
That’s what was unethical. You knew you
were unethical when you took that case.
Right? Correct?

Judge May: I’m not answering.

Hernandez: You knew you been married to a
law enforcement officer for over two decades,
correct?

Judge May: I’m not answering these questions.
I am not answering that question, and this is
getting inappropriate.

Hernandez: No, what’s inappropriate is you
waking up next to a cop [every day] and going
in there and deciding not to recuse yourself
until [eleven] days after his court date. That’s
what’s inappropriate.

¶7 Hernandez told Bernard that the elevator ride must have been

the “longest elevator ride of th[at] bitch’s life” and that Judge May

“darted” as soon as the elevator doors opened. After recounting the

5
story, Hernandez told Bernard that she was not going to “let that

bitch” walk past her without saying anything.

II. Procedural History

¶8 Hernandez was charged with retaliation against a judge as an

act of harassment under section 18-8-615(1), C.R.S. 2025.

Hernandez filed a motion asking the court to dismiss the charge

against her because (1) the People didn’t specify which subsection

of the harassment statute she had violated; and (2) her statements

were protected speech under the First Amendment, and, thus, she

was immune from prosecution. The People then filed a motion to

amend the complaint, which the court granted. Hernandez’s

previous charge — retaliation against a judge “commits an act of

harassment” — was changed to retaliation against a judge “makes a

credible threat.”

¶9 The court held a hearing, in part, to resolve Hernandez’s

argument that, as applied, section 18-8-615(1)(a) violated her First

Amendment rights. Hernandez’s counsel argued that her

statements were not true threats and were protected speech, while

the People countered that, based on the totality of the

circumstances, her statements were threats.

6
¶ 10 The district court noted that if it “were assessing the

sufficiency of the complaint without applying a First Amendment

analysis, the charge appear[ed] to be facially sufficient to support

th[e] prosecution,” but because the court was required to determine

whether Hernandez’s alleged “credible threat” was a “true threat of

violence” outside the bounds of First Amendment protection and

punishable as a crime, it had to consider the statements in light of

Counterman v. Colorado, 600 U.S. 66, 69 (2023). Under

Counterman, the court had to consider Hernandez’s subjective

understanding of the threatening nature of her statements and

whether she acted recklessly by making them.

¶ 11 The court concluded that the People did “not have sufficient

evidence to support a finding that [Hernandez] made threats toward

Judge May that constituted true threats, nor that [Hernandez]

understood and recklessly disregarded the threatening nature of

those communications.” The court dismissed the charge against

Hernandez on the grounds that the statements were protected

speech under the First Amendment of the United States

Constitution and article II, section 10, of the Colorado Constitution.

The People appeal.

7
III. Analysis

¶ 12 The People contend that the district court erred by dismissing

the charge against Hernandez because (1) she had a subjective

understanding of the threatening nature of her statements; (2) a

jury should have decided whether the statements were true threats;

and (3) a reasonable person in Judge May’s position, when viewed

objectively, would have perceived Hernandez’s statements as true

threats.

A. True Threats

¶ 13 The People first contend that Hernandez had a subjective

understanding of the threatening nature of her statements based on

their content, her tone and demeanor, her refusal to end the

conversation, the location, her refusal to identify herself, and her

conversations with Bernard. We disagree.

1. Standard of Review and Applicable Law

¶ 14 We review de novo a court’s grant of a motion to dismiss

criminal charges, People v. Gregory, 2020 COA 162, ¶ 15, and the

constitutionality of a statute as applied, People v. Chase, 2013 COA

27, ¶ 65. To prevail on an as-applied constitutional challenge, the

challenging party must show that the statute is unconstitutional

8
under the circumstances in which she has acted. People v.

Maxwell, 2017 CO 46, ¶ 7. We also review de novo free speech

issues under the First Amendment. People v. Casper, 2025 COA

69, ¶ 15.

¶ 15 The free speech protections of the First Amendment are not

absolute. Chase, ¶ 68. A true threat is a statement by which “the

speaker means to communicate a serious expression of an intent to

commit an act of unlawful violence to a particular individual or

group of individuals.” People v. Brown, 2022 COA 19, ¶ 26 (quoting

Virginia v. Black, 538 U.S. 343, 359 (2003)). True threats fall

outside the protections of the First Amendment because “they serve

none of the purposes of the First Amendment: they do not express

ideas or opinions, and are not part of the marketplace of ideas in

which there is dialogue.” People v. Stanley, 170 P.3d 782, 788

(Colo. App. 2007). A statute that criminalizes a threat must “be

applied and interpreted consistently with the First Amendment.” Id.

at 786.

¶ 16 “When the sufficiency of the evidence is challenged on appeal,

the reviewing court must determine whether any rational trier of

fact might accept the evidence, taken as a whole and in the light

9
most favorable to the prosecution, as sufficient to support a finding

of guilt beyond a reasonable doubt.” Id. at 790 (quoting People v.

McIntier, 134 P.3d 467, 471 (Colo. App. 2005)); see also People in

Interest of R.D., 2020 CO 44, ¶ 65 (“Because we have clarified the

test to be used when evaluating whether a statement constitutes a

true threat, the trial court is in the best position to review the

record, to take further evidence in its discretion, and to reach a

conclusion on the matter.”), abrogated in part by, Counterman, 600

U.S. at 78. While the question of whether a statement is a “true

threat” — instead of protected speech — is, in the first instance, one

of fact to be determined by a fact finder, when First Amendment

concerns are implicated, the court has an obligation to make an

independent review of the record as a whole to ensure the judgment

doesn’t impermissibly intrude on free expression. Stanley, 170 P.3d

at 790.

¶ 17 In determining whether a statement amounts to a true threat,

courts may consider a nonexhaustive list of factors including (1) the

statement’s role in a broader exchange; (2) the medium through

which the statement was communicated; (3) the manner in which

the statement was conveyed; (4) the relationship between the

10
speaker and the recipient; and (5) the subjective reaction of the

intended recipient. R.D., ¶ 4. In Counterman, the United States

Supreme Court held that, in true threat cases, the First

Amendment also requires the People to demonstrate that the

defendant has some subjective understanding of the statement’s

threatening nature and at least a reckless mens rea. 600 U.S. at

73. A person acts recklessly in the context of true threats when the

individual “consciously disregard[s] a substantial [and unjustifiable]

risk that the conduct” will be regarded as threatening violence but

delivers the statements anyway. Id. at 79 (quoting Voisine v. United

States, 579 U.S. 686, 691 (2016)).

¶ 18 Retaliation against a judge under section 18-8-615(1)(a)

occurs when an individual makes a credible threat against a judge,

commits an act of harassment, or commits an act of harm or injury

upon person or property as retaliation or retribution against a

judge.

1. Analysis

¶ 19 The People contend that, when considered in context,

Hernandez’s statements presented a true threat because a

reasonable juror could have determined that Hernandez

11
subjectively understood that her statements to Judge May were

threatening and that her actions after the encounter demonstrated

“not just reckless conduct, but purposeful conduct intended to

threaten the judge.” In support, they point to the conversations

between Bernard and Hernandez before and after the elevator

encounter, Hernandez’s tone and demeanor toward Judge May, the

location of the conversation, and Hernandez’s refusal to end the

conversation or identify herself.

¶ 20 To that end, the People rely on cases in which courts have

concluded that, based on the context and totality of the

circumstances, the speaker’s statements could have been perceived

as “a serious expression of an intent to commit an act of unlawful

violence.” R.D., ¶ 51; see, e.g., Brown, ¶¶ 40-42 (concluding that

the content of the defendant’s statements, coupled with his physical

behavior reflecting his anger, supported a conclusion that his

statements constituted true threats to the judge presiding over

defendant’s case); Brewington v. State, 7 N.E.3d 946, 965 (Ind.

2014) (The defendant’s publication of a judge’s home address

“strongly suggest[ed] that [the] [d]efendant could have only intended

the address as a hint to the [j]udge that [the] [d]efendant’s

12
campaign would not stop with mere criticism, but would instead

jeopardize his family’s safety in their own home.”); Pollen v. State,

834 So. 2d 380, 382-84 (Fla. Dist. Ct. App. 2003) (holding that

shoplifter’s statement to security associate, “I am going to come

back and see you,” when he had no reason to do so, viewed in

context, could reasonably be interpreted as a threat for purposes of

witness tampering).

¶ 21 The cases the People cite, however, are distinguishable from

the present case. In Brown, the defendant exhibited physical anger

throughout a dependency and neglect proceeding in which he was a

respondent parent (clenching his fists and jaw, using profanity, and

shouting at the judge). Brown, ¶ 41. He also made the following

statements to the judge after she ordered him to undergo a

domestic violence evaluation: “Let me kidnap your daughter and see

if you don’t get angry. As a matter of fact, where do you live, Your

Honor? Let me see if we can get this all resolved. See if you would

be angry.” Id. at ¶ 9. After weighing the R.D. factors, the court

determined that these statements, which presented a concrete and

active proposal to take a person against their will, “could reasonably

have been perceived as a serious expression of intent to commit an

13
act of unlawful violence, and, therefore, constituted a true threat.”

Id. at ¶ 52.

¶ 22 In Brewington, the defendant didn’t overtly threaten the judge

presiding over his divorce proceedings, but the Indiana Supreme

Court concluded that, based on his actions and statements to

others, Brewington’s threatening intent constituted true threats. 7

N.E.3d at 955, 964. Brewington published the judge’s home

address online; he knew that the judge considered him “dangerous”

based on his behavior in the courtroom, which necessitated the

presence of a sheriff’s deputy during a hearing; and Brewington

wrote his child’s therapist a letter stating, “I have always said that I

would hold everyone accountable for any unethical and/or illegal

conduct in matters dealing with my children. Some would argue

that this appears threatening. I would argue that it is a promise.” Id.

at 967.

¶ 23 In contrast to the cases the People cite, when considered in

the broad context of the elevator encounter and the phone calls

between Hernandez and Bernard, Hernandez’s statements were not

true threats. First, unlike the defendants in Brown and

Brewington, Hernandez didn’t target Judge May. The encounter

14
was coincidental — Hernandez was waiting for an elevator, and

Judge May approached and entered the same elevator. Though

Hernandez’s statements were disrespectful and inappropriate, they

weren’t true threats because no reasonable juror could find that the

statements conveyed Hernandez’s intent to commit an act of

violence against Judge May or her husband.

¶ 24 Rather, Hernandez’s statements criticized Judge May’s ethics

and expressed Hernandez’s opinion that Judge May was biased. A

criticism of a judge’s actions is not intrinsically a threat and is

protected by the First Amendment. See Stanley, 170 P.3d at 791

(“A statement of critical opinion about a judge is protected . . .

because it serves the principal purpose of the First Amendment —

to safeguard public discussion of governmental affairs.”); Dun &

Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759

(1985) (“[T]he [Supreme Court of the United States] has frequently

reaffirmed that speech on public issues occupies the ‘highest rung

of the hierarchy of First Amendment values,’ and is entitled to

special protection.” (citations omitted)).

¶ 25 And although Hernandez’s statement, “You knew you been

married to a law enforcement officer for two decades,” may have

15
been unsettling, the context of this statement clarified that

Hernandez was not threatening to harm Judge May or her husband

but was instead criticizing Judge May based on her perception that

Judge May was biased in favor of law enforcement officers.

Specifically, she told Judge May that (1) it was unethical to preside

over the case “knowing you were biased and going through a whole

preliminary hearing and disturbing someone’s due process rights,”

and (2) it was “inappropriate” for Judge May to be “waking up next

to a cop [every day] and going in there and deciding not to recuse

[herself] until” after the preliminary hearing.

¶ 26 True, Judge May described Hernandez’s posture and

demeanor as “aggressive” and “stiff” and her voice as “deliberate,

firm[,] and commanding.” But, again, considered in context,

Hernandez’s demeanor and tone reflected her frustration; that

conduct doesn’t elevate her statements to a true threat. See Brown,

¶ 24 (“[C]ourts must be cautious in distinguishing between an

emotional courtroom outburst of a frustrated litigant and a credible

threat directed to a judicial officer.”). Moreover, Detective Nevarez

testified that Hernandez didn’t touch or threaten to physically harm

Judge May, and law enforcement was already aware that Hernandez

16
was “very outspoken about . . . Bernard’s current legal situation

through social media and various other outlets.” Hernandez’s

anger, however, doesn’t show that she subjectively understood her

statements criticizing Judge May to be threatening or that she

recklessly disregarded their threatening nature and made them

anyway.

¶ 27 Finally, the People also contend that, before the elevator

encounter, Bernard and Hernandez were “plotting . . . to target the

judge on a ‘compromised judge list.’” While we disagree with the

district court’s finding that Bernard’s statements were irrelevant,

the statements are not enough to show that Hernandez intended to

threaten Judge May. First, the People didn’t present evidence that

Hernandez made any threatening statements about Judge May

during her conversation with Bernard; they asserted that Bernard

made threatening statements. Second, Bernard’s statements

following his preliminary hearing were made two months before the

elevator encounter. Although Bernard’s statements concerning

Judge May may have explained, in part, why Judge May was fearful

and perceived Hernandez’s statements as threatening, they don’t

17
show that Hernandez had a subjective understanding that her

statements were threatening.

¶ 28 Similarly, while Hernandez’s statements to Bernard discussing

the elevator encounter may have demonstrated that Hernandez

realized (or even relished) that she made Judge May uncomfortable,

causing discomfort isn’t equivalent to making a threat, nor is it a

crime. Also, her conversation with Bernard occurred after the fact,

and those statements were made to him — not to Judge May.

¶ 29 Under the applicable law, we agree with the district court that

no reasonable juror could have found Hernandez’s comments were

true threats. We therefore discern no error.

B. Submission to the Jury

¶ 30 The People contend that the jury should have determined

whether Hernandez’s statements were true threats. Under the

circumstances presented here, we disagree.

¶ 31 Case law from both Colorado courts and the Tenth Circuit

Court of Appeals suggests that, in most cases, “whether a statement

is a true threat is a question of fact to be determined by the fact

finder.” Chase, ¶ 70; see United States v. Wheeler, 776 F.3d 736

(10th Cir. 2015); United States v. Viefhaus, 168 F.3d 392, 397 (10th

18
Cir. 1999). But “if there is no question that a defendant’s speech is

protected by the First Amendment, the court may dismiss the

charge as a matter of law.” Viefhaus, 168 F.3d at 397. And as

detailed above, such a dismissal is warranted here. Cf. Chase, ¶ 70

(noting that, even if the fact finder concludes that a statement is a

true threat, “the court has an obligation to make an independent

review of the record to assure that the judgment does not

impermissibly intrude on the field of free expression”); Wheeler, 776

F.3d at 742 (Appellate courts reviewing true threats must

“determine for themselves whether the fact-finder appropriately

applied First Amendment law to the facts.”); Hurley v. Irish-

American Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 567

(1995) (“[W]e must . . . decide for ourselves whether a given course

of conduct falls on the near or far side of the line of constitutional

protection.”).

¶ 32 We are unpersuaded by the People’s reliance on United States

v. White, 610 F.3d 956, 962 (7th Cir. 2010), for the proposition that

any “dispute over the meaning and inferences that can be drawn

from the facts” is an issue for the jury to decide. In White, the

defendant created and maintained a website advocating violence

19
against enemies of white supremacy. See id. at 957. Following the

conviction of a prominent white supremacist, the defendant posted

on his website a picture, the name, address, and telephone number

of the jury’s foreperson and called him a “[g]ay anti-racist . . . juror

. . . [who lived with his] gay [B]lack lover.” Id. at 957-58. The

defendant was charged with solicitation of a crime of violence,

which the district court dismissed after concluding that the posting

was protected by the First Amendment. Id. at 958.

¶ 33 On appeal, the Seventh Circuit Court of Appeals reversed

because the government explained that it had “further evidence of

the website’s readership, audience, and the relationship between

[the defendant] and his followers” that was not presented in the

indictment. Id. at 962. The government argued that such evidence

would show that the posting was a specific request to the

defendant’s followers, who would understand the nature of the

request and were willing to act upon it. Id. In other words, the

court didn’t know all the facts and circumstances surrounding the

statements, so dismissal was premature. Id.

¶ 34 Here, in contrast, the parties appeared to agree about the facts

and circumstances surrounding the encounter. Both parties agreed

20
that Hernandez wasn’t waiting for Judge May by the elevators and

that the encounter was coincidental; Hernandez made the

statements to Judge May; Hernandez was confrontational during

the encounter; Bernard made phone calls to Hernandez about

Judge May before the encounter; a chart was created that included

Judge May’s photograph; and Hernandez and Bernard discussed

the elevator encounter after it occurred. Further, the prosecution

didn’t indicate that it had any other evidence about the

circumstances surrounding the statement that it didn’t present at

the hearing. Thus, the only issue for the court to resolve was

whether section 18-8-615(1)(a) was constitutional as applied to

Hernandez, which it could determine as a question of law. Hurley,

515 U.S. at 567.

¶ 35 The district court, therefore, did not err by concluding that the

statute couldn’t be constitutionally applied to Hernandez.

C. Whether, When Viewed Objectively, Hernandez’s Statements
Were True Threats

¶ 36 The People contend that, viewed objectively, Hernandez’s

statements constitute true threats. Having concluded, however,

21
that no material factual dispute existed, we need not address this

argument.

IV. Disposition

¶ 37 The order is affirmed.

JUDGE J. JONES and JUDGE LUM concur.

22