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.
2. 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.