DA Mulling Charges Against Trio Using Smoke Device Who Set El Dorado Fire

The San Bernardino County District Attorney’s Office is on the brink of filing felony Penal Code Section 452 reckless burning of private and public property charges against a Yucaipa couple and a family friend over their actions that led to the El Dorado Fire, which burned 22,744 acres.
Not yet determined is whether the prosecutor’s office will file Penal Code Section 451 arson charges against the trio, and whether prosecutors will also seek child endangerment convictions, as well.
The El Dorado Fire was sparked September 5, 2020 at approximately 10:23 a.m. when a couple used a pyrotechnic device, referred to as a “smoke cannon” intended to release either blue or pink smoke to reveal the gender of a baby the woman was carrying. The couple had invited a number of friends and extended family members to El Dorado Park in Yucaipa to the gender reveal party.
A surveillance video from a camera at the park depicts the couple with several people, a number of them children, walking onto the grass at the edge of the park. Another adult is seen in the video lighting the device. Shortly thereafter, the dry grass and vegetation near the device is seen to ignite, and the video shows individuals scurrying in a futile effort at dousing the flames with water from water bottles. At the time the fire initiated, the temperature in Yucaipa had already reached 90 degrees, and would attain 110 later that afternoon.
The fire spread from the park to the north onto Yucaipa Ridge that separates Mountain Home Village and Forest Falls from the City of Yucaipa. After initially burning northward early on Saturday, the fire circled back as it was pushed by inconsistently-directed winds, ultimately moving in four different directions, first pushing east, then northward, taking at one point a substantial westwardly shift on Saturday evening, and on Sunday, September 6 moving south. The fire thus spread in four different directions.
Over 23 days, the fire consumed 22,680 acres in the Oak Glen/Yucaipa Ridge area and within the San Gorgonio Wilderness Area of the San Bernardino National Forest. Firefighting efforts, directed from from a command post established at Yucaipa Regional Park and involving 1,351 personnel, did manage to prevent the fire from moving into populated areas. As such, the conflagration moved into the area’s rustic canyons and, ultimately, the heavily wooded National Forest. Twenty mostly isolated structures, five of them homes, were burnt to the ground. Another four residences were significantly damaged.
On the twelfth day of the effort to control the fire, September 17, Charles Morton, a specialized “hot shot” fire suppression team commander with 14 years experience as a firefighter, was killed. Another 13 firefighters were injured throughout the El Dorado Fire ordeal.
The fire, which required 60 miles of fire lines to suppress and ranged from a minimum elevation of 3,030 feet to a maximum of 10,640 feet, forced the evacuations of Oak Glen, north Yucaipa, Mountain Home Village, Forest Falls, and Angelus Oaks.
The firefighting effort was manpower intensive and extremely costly. The 1,351 firefighters involved included those functioning under two interagency incident management teams rotated into place throughout the operation, those being California Interagency Management Team 11, supervised by Commander Chris Fogle, and California Interagency Management Team 13, led by Incident Commander Mike Wakoski. There were 17 hand crews working the fire lines, 177 fire engines, 20 water tenders, 17 bulldozers, and 10 helicopters. Numerous fixed-wing tankers were brought to bear in the effort, including a DC-10, which engaged in aerial fire-retardant drops. Three Canadian Fire Bosses and a single-engine air tanker water scooper, operating from a base at Big Bear Airport & Lake, were also used for the first time in Southern California.
Though the major effort to bring the fire under control had been completed by September 29, smoldering continued within the interior of the burn scar perimeters in the mountain region of the San Bernardino National Forest and San Gorgonio Wilderness. Pockets therein still featured yet glowing, and reigniting, trees or vegetation. As of November 1, the fire was considered to be 95 percent contained, as there were yet uncontained perimeters of the blaze located in steep and inaccessible terrain. Evacuation warnings were lifted on Wednesday, November 11 by the San Bernardino County Sheriff for the areas or communities of Mountain Home Village, Forest Falls, Angelus Oaks, Seven Oaks, and Barton Flats. During the second week of November, after a winter storm brought several inches of snow, smoke continued to be seen in the area around Forest Falls. On November 16, 2020 San Bernardino National Forest officials announced that the El Dorado Fire had reached 100 percent containment, as the remnants of the fire in uncontained areas had reached natural features composed of granite and bare earth devoid of vegetation.
Between September 29, at which point the fire had ravaged 22,680 acres, and November 16, the fire charred an additional 64 acres through occasional one-, two-, three-, four- and five-acre flare-ups that were knocked down or brought under control relatively quickly, such that the total fire damage extended to 22,744 acres.
It was after the fire had run its course that investigators began their inquiry in earnest, involving a criminal focus, into what had led to the fire. This week, on January 14, the San Bernardino County District Attorney’s Office announced, “Earlier this week, our office received the completed investigative reports from the San Bernardino County Sheriff’s Department regarding the El Dorado Fire. Deputy district attorneys assigned to the case will begin reviewing these reports, as well as the investigative reports from the California Division of Forestry and Fire Protection, and a review of all other reports and evidence.”
The Sentinel has learned, based on the contents of those reports, that the district attorney’s office is constrained to five options. The first of those is to take no prosecutorial action, which, given the set of circumstances, does not appear likely.
Three of the remaining options confine themselves to Penal Code Section 452, which can be filed as variously a felony or a misdemeanor, and Penal Code Section 451, a felony. The fifth option open to the district attorney’s office is to layer onto the other charges a secondary Penal Code Section 273a child endangerment charge.
Penal Code 452 PC in California criminalizes a person recklessly setting fire to or burning any structure, forest land, or property. Penal Code 452 states, “A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.”
Penal Code Section 452 is considered, in prosecutorial parlance, a wobbler, meaning it can be tried as a misdemeanor or a felony. Under the law, recklessness is distinguished from negligence. Similarly, recklessness is distinguished from a wholly willful and intentionally malicious act.
The necessary element of a Penal Code Section 452 crime is for an individual to have created by his or her action a fire which results in the destruction of private property. If charged as a misdemeanor, a Penal Code 452 conviction can net the offender imprisonment in a county jail for up to six months, and/or a fine of up to $1,000.
In the case where reckless burning results in the burning of or substantial damage to a structure or forestland, or if it results in great bodily injury, then the crime can be prosecuted as a felony at the discretion of the prosecutor. A felony conviction on a Penal Code Section 452 offense mandates a state prison sentence of no less than sixteen months and potentially up to three years for the reckless burning of land, a state prison term of up to four years for the burning of an inhabited structure or inhabited property, and up to six years in state prison for any reckless fire setting that result in burning causing great bodily injury.
A person is deemed to have acted “recklessly” if he or she is aware that his or her actions could present a substantial and unjustifiable risk of causing a fire, he ignores that risk, and in doing so grossly deviates from how a reasonable person would act in the same situation.
While it is not uncommon for Penal Code Section 452 violations to be charged as misdemeanors, when a perpetrator of a Penal Code Section 452 offense can be shown to have acted with a complete disregard for or indifference to safety, this section of the penal code can be prosecuted as a felony.
Not yet determined is whether the prosecutor’s office will file Penal Code Section 451 arson charges against the trio.
So-called “accidental” fires are generally not prosecuted as arson. Crucial is the definition of “accidental.” Negligence or irresponsible disregard of safety procedures can obliviate the application of an accidental application to a circumstance. When a fire results from demonstrably gross negligence or a wanton or even casual disregard for the consequences of setting the fire, the fire can cease to be regarded as accidental, and may therefore be interpreted as arson.
Under Penal Code Section 451 “A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property. (a) Arson that causes great bodily injury is a felony punishable by imprisonment in the state prison for five, seven, or nine years.”
The Penal Code Section 451 prosecution option would require a far more tortuous route to conviction of the three individuals in this case, as a guilty finding would normally require a demonstration of malicious intent. There is little to indicate the trio had an intent that what they did would cause a conflagration. Moreover, at least one of the three made a 911 call to report the fire, and all three from the outset of their contact with authorities just after the fire was set cooperated with the California Division of Forestry and Fire Protection. Nevertheless, the consideration that the fire they were responsible for led to Morton’s death, the injury of 13 other firefighters, wreaked so much damage to the forest and the wilderness, and destroyed or damaged 24 structures, coupled with the utter disregard the trio showed for the potential impact of their actions, elevates the matter to a level of seriousness that would allow prosecutors to allege they had to recognize the danger in the action they collectively engaged in, and proceeded anyway, which a jury could interpret as arson.
Relevant in this consideration is that there have been multiple examples of gender reveal events held in circumstances similar to those in Yucaipa on September 5 causing fires or injury. On April 23, 2017, a gender reveal event in the Santa Rita Mountains foothills southeast of Tucson, Arizona went awry and an explosion from a smoke producing device ignited the 47,000-acre Sawmill Fire. There was information extant about the unpredictability of smoke producing devices used at gender reveal parties. In Marion County in Iowa on October 19, 2019, a woman was killed when a smoke cannon exploded, resulting in a flying piece of debris striking the victim with fatal effect.
An arson conviction carries a maximum sentence of nine years. Because of the heavier sentence an arson conviction would involve, prosecutors may want to pursue it for the leverage it would provide in pretrial maneuvering to induce the three to take a Penal Code Section 452 plea in exchange for the dropping of the arson charge.
While the cooperation the three have have evinced throughout what has nearly been four-and-a-half months has greatly reduced the likelihood that they will be tried for arson, their statements and the El Dorado Park security video virtually establish that they violated Penal Code Section 452 and engaged in Penal Code Section 273a, child endangerment. Several children were present in the vicinity of the smoke cannon, which was placed on ground beset with dry grass that has been likened to tinder.
Penalties for misdemeanor child endangerment range to confinement for up to one year in county jail, and/or a fine of up to $1,000. Where it can be established that the minor is at risk of death or great bodily harm, child endangerment becomes a wobbler offense, which can be charged as either a misdemeanor or a felony at the prosecutor’s discretion. Upon a demonstration of a risk of death or great bodily harm to a child, conviction can be met with a sentence of two, four, or six years in California state prison, and/or a fine of up to $10,000. In the case of what occurred on September 5, prosecutors would have the option of seeking a separate endangerment conviction for each child that was present.
Arson convictions carry with them a restitution order, but in the case of the El Dorado Fire, the damage is so excessive it would be impossible for the three alleged perpetrators to meet that burden.
“While we know our community wants answers, we have to be diligent and thorough in understanding every aspect of this case so that we can render the appropriate filing decision, which we anticipate issuing no later than March 1, 2021,” said District Attorney’s Office Spokesman Mike Bires. “We thank you in advance for your trust in our office and for understanding the complexity and importance of this fire which impacted so many in our community.”
-Mark Gutglueck

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