Pashilk ordered to stand trial for setting Clayton fire, 14 other wildland blazes
LAKEPORT, Calif. – A judge has ordered a Clearlake man to stand trial on charges that he set the Clayton fire – which destroyed hundreds of structures in Lower Lake – and a series of other fires in Lake County in the summers of 2015 and 2016.
Judge Andrew Blum handed down his decision at the end of the preliminary hearing for Damin Anthony Pashilk, 43, on Wednesday afternoon.
During the preliminary hearing – a proceeding which began on Feb. 14 and stretched over nine days – Chief Deputy District Attorney Richard Hinchcliff presented evidence for 23 charges related to Pashilk’s alleged setting of the Clayton fire in August 2016 and 15 other fires between July of 2015 and August of 2016, plus an attempted start of a 17th fire that self-extinguished. The charge for one of the fires was dropped on Wednesday.
Hinchcliff called to the stand numerous law enforcement officers and investigators, the majority of them from Cal Fire, which had Pashilk under surveillance for more than a year.
The last witness in the case was Cal Fire Deputy Chief James Engel, who has been present with Hinchcliff throughout the proceedings. Engel oversaw Cal Fire’s investigation of Pashilk, and his testimony wrapped up on Wednesday morning.
Rather than lengthy closing arguments, Hinchcliff wrote a summary of evidence presented in the case and submitted it as an exhibit, which Blum accepted as the hearing reconvened on Wednesday afternoon.
During the afternoon session, Hinchcliff said in short closing statements that the prosecution believed there is sufficient evidence for Pashilk to face trial on all counts except for count 11, which related to a fire set at Crestview Drive and North Drive in Clearlake on July 17, 2016. Hinchcliff said he was not requesting a holding order on that count.
In his closing statements, defense attorney Mitch Hauptman, focused on count one, which relates to the Clayton fire, which destroyed 300 structures in and around Lower Lake, nearly 200 of them homes. The historic downtown also suffered significant losses.
For his alleged setting of the Clayton fire, Pashilk is charged with felony aggravated arson under California Penal Code Section 451.5.
That penal code section states that any person “who willfully, maliciously, deliberately, with premeditation, and with intent to cause injury to one or more persons or to cause damage to property under circumstances likely to produce injury to one or more persons or to cause damage to one or more structures or inhabited dwellings, sets fire to, burns, or causes to be burned, or aids, counsels, or procures the burning of any residence, structure, forest land, or property is guilty of aggravated arson” if one or more aggravating factors exists.
In Pashilk’s case, the factor that makes it aggravated arson is that the Clayton fire caused property damage and other losses in excess of $7 million.
On day five of the preliminary hearing, Marnie Patchett, an analyst in Cal Fire’s cost recovery unit, testified to conducting calculations for the costs to fight the Clayton fire, which she said totaled $22.7 million.
The sunset date of that aggravated arson statute, incidentally, was extended by a bill by North Coast Sen. Mike McGuire that was signed last year by then-Gov. Jerry Brown. McGuire, who had cited the Clayton fire case as a reason to pursue it, said the bill meant to ensure law enforcement agencies “maintain a valuable deterrent to prevent arson-caused wildfires.”
Hauptman called the statute “unusual.” He said that the aggravated arson count requires that several things be proved: that the setting of the fire was willful, malicious and premeditated.
“I don't think that's been proven. I don't think there's even a hint of that,” Hauptman said.
He added, “I think there is a significant difference between a willful and malicious act and premeditation.”
While Hauptman said he wasn’t conceding that Pashilk set any of the fires, he said that all but one fire prior to the Clayton fire had failed to cause any damage to structures, and that 16 prior efforts had resulted in no injuries, with the fires set in remote areas away from homes.
“It's not a casual argument that I'm throwing out here,” Hauptman said, explaining that, even at the low evidentiary standard of a preliminary hearing, he found there to be difficulty in establishing the elements that form the basis of an aggravated arson finding.
In his response, Hinchcliff said that Pashilk, in an interview with investigators, acknowledged that he knew fires can be deadly and that he had worked as a firefighter at a prison fire camp.
Hinchcliff said the prosecution didn’t have to prove that Pashilk acted with premeditation.
He pointed to a fire set on Seigler Canyon Road in Lower Lake on the evening of Aug. 9, 2016 – four days before the Clayton fire – that had burned a residence. He said Pashilk is alleged to have set numerous fires, over and over.
“He himself was well aware, as he said during his interview, that fire can be destructive and deadly,” Hinchcliff said, adding there is more than sufficient evidence to hold Pashilk to stand trial for the Clayton fire.
Judge reviews evidence, makes determination
Once the prosecution and defense had offered their brief closing arguments, Judge Blum offered his conclusions.
“In the summer of 2015 and 2016 we had numerous fires. They had a lot in common,” he said, explaining they all started in the same way, at the edges of roadway or turnouts, with no other sources and no indications that vehicles had sparked them.
“I think it's reasonable to interpret that each of these fires is arson caused. In fact, there's no other plausible explanation for them,” Blum said, adding that all were located in places where they could easily be set.
“So I certainly infer that each of these was arson caused,” he said.
He said that in each of the fires, Pashilk had been determined to have been close by within minutes.
Testimony throughout the preliminary hearing had noted that a green Subaru station wagon that Pashilk was known to drive in 2015 had been caught on two surveillance cameras at several fire sites on different dates. A gray Chrysler Sebring he drove the following summer also was seen in the area of fires by surveillance cameras and law enforcement officers.
Cal Fire law enforcement officers followed him into the fire areas, visually observing him and also tracking him with a GPS device that they had received clearance to place on both vehicles through a search warrant.
Pashilk was known to drive into remote areas where the fires started, and Blum said there was “no apparent lawful reason” for Pashilk’s driving pattern.
On Aug. 13, 2016, the day the Clayton fire was set, investigators followed Pashilk. He was shown on the GPS tracker to have pulled off onto Clayton Creek Road, where his vehicle was seen to have been about 90 seconds before a fire was sparked there. Cal Fire officers who tracked him discovered the fire, which immediately took off and, the next day, would tear through downtown Lower Lake.
Blum said there were several examples of Pashilk being in the immediate area before a fire started.
When he was arrested on Aug. 15, 2016 – by a Lake County Sheriff’s deputy who took him into custody for driving on a suspended license – Cal Fire confiscated the Chrysler and searched it at the Clearlake Police Department.
Blum said that in the car the investigators found matches and lighters and a lot of pieces of paper and paper napkins, including a twisted napkin like one that had been determined to be an ignition source on the Canyon fire on Aug. 9, 2016.
Investigators recovered an Otter Pop wrapper at the Clayton fire scene that they determined was the ignition source. Blum said the search of the Chrysler found another empty Otter Pop wrapper.
“It's only reasonable for the court to conclude that Mr. Pashilk started each of these fires,” Blum said.
“He has fought fires. He knows fires,” and he knows what fires can do, Blum said.
Blum said he had a strong suspicion that each fire was arson and that Pashilk had started them. He also found that each of the special allegations – including causing multiple structures to burn in the Clayton fire, and setting the Clayton fire and another fire on Highway 29 near Lower Lake on Aug. 7, 2016, in an area where the governor had declared a state of emergency – had been proven.
Regarding the ignition location of the Clayton fire, on an upward slope leading toward the town of Lower Lake, “You're trying to burn down things. You're trying to burn down structures,” said Blum.
Blum ordered Pashilk to be held to answer and stand trial on all of the counts except count 11 regarding the fire on July 17, 2016, on Crestview Drive and North Drive in Clearlake, as the District Attorney’s Office had requested.
The judge also ordered Pashilk to return to court on March 26 for the next steps in the case, beginning with another arraignment.
Charges and incidents
The following is a list of the fires Pashilk is alleged to have set, in chronological order, with each incident's corresponding count in the criminal filing and the charges:
• July 2, 2015, 7:32 a.m.: Highway 20 at Judge Davis Trail (“Judge” fire No. 1), Clearlake Oaks (Count IV); arson.
• July 2, 2015, 7:50 a.m.: Highway 20 at Walker Ridge Road (“Judge” fire No. 2), Clearlake Oaks (Count V); arson.
• July 29, 2015, 8:30 p.m.: Highway 20 east of New Long Valley Road (the “Long” fire), Clearlake Oaks (Count VI); arson.
• Aug. 8, 2015, 2:27 p.m.: High Valley Road and Cerrito Road, Clearlake Oaks (Count VII); arson.
• Aug. 13, 2015, 11 a.m. : Woodland Drive, Clearlake (Count VIII); arson.
• Aug. 14, 2015, 8:18 p.m.: Sulphur Bank Road, south of North Drive, Clearlake (Count IX); arson.
• Aug. 25, 2015, 3:47 p.m.: East Lake Drive, Clearlake (Count X); arson.
• July 17, 2016, 5:08 p.m.: Crestview Drive and North Drive, Clearlake (Count XI); arson.
• July 21, 2016, 5:08 p.m.: 18000 block of Morgan Valley Road near Staehle Lane, Lower Lake (Count XII); arson.
• July 23, 2016, 7:03 p.m.: Western Mine Road, Middletown (Count XIII); arson.
• July 26, 2016, 6:48 p.m.: Sulphur Bank Road, north of North Drive, Clearlake (Count XIV); arson.
• July 27, 2016, 7:23 p.m.: Lakeshore Drive and San Joaquin Drive, Clearlake (Count XV); arson.
• July 29, 2016, 2:47 p.m.: Ogulin Canyon Road, east of Highway 53, Clearlake (Count XVI); arson.
• Aug. 7, 2016 (start time not listed): Highway 29 near mile post marker 16.29, Lower Lake (Count XVII); arson.
• Aug. 9, 2016, 5 p.m.: Seigler Canyon Road, Lower Lake (Count XVIII); arson.
• Aug. 9, 2016, 5:25 p.m.: Clayton Creek Road, Lower Lake (Count XIX); attempted arson.
• Aug. 13, 2016, 5:01 p.m.: Clayton fire, Clayton Creek Road, Lower Lake (Counts I, II and III); aggravated arson, arson.
Special allegations include causing multiple structures to burn in the Clayton fire, and setting the Clayton fire and another fire on Highway 29 near Lower Lake this past Aug. 7, because both of those fire were in an area Gov. Jerry Brown has declared to be in a state of emergency.
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