Mendocino District Attorney Hammers State Legislation That Allowed a Convicted Arsonist to Escape a Violation of Probation Charge

Defendant Charles Levi Kirk, age 21, of Piercy, was given an early Christmas gift Friday morning in the Mendocino County Superior Court, one that unfortunately cuts against the public’s overwhelming and reasonable concern about fire safety, according to Mendocino County District Attorney David Eyster.

As background, the Shimmins Ridge Fire that started September 4, 2018 and burned 10 acres was one of a string of fires that occurred late summer 2018 and was immediately suspected as arson.

A resident of Shimmins Ridge found a burning gas can near the fire and worked with another neighbor to put out the fire until local fire personnel could arrive.

One of the residents believed he saw a car similar to the one that had been reported at the scene of the fire on August 27 at Bell Springs Road. According to Cal Fire, soon after the Shimmins Ridge Fire was reported, there was another fire reported out Hwy 162, and then a third fire was reported closer to Covelo.

Defendant Kirk was eventually identified as the criminal who had set six separate wild land fires in northern Mendocino County in August and September of 2018. He was arrested, charged, and convicted of six counts of arson of forest land, felony violations of California Penal Code section 451(c).

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He also was required to admit a sentencing enhancement, charged by the DA, that in the course of the Shimmins Ridge fire Kirk used an accelerant to cause that fire to take off and spread faster.

In December 2018, Kirk was sentenced by now-retired Mendocino County Superior Court Judge John Behnke to 17 years, 8 months in state prison; however, the execution of that state prison sentence was suspended for a probationary period to be no less than five years. This conditional leniency was granted because of the defendant’s young age at that time (18) and his lack of prior criminal record.

During the “no early termination” five-year grant of probation, the defendant was ordered to serve a year in the county jail, that he complete a fire starter education program, that he be subject to random search and seizure by law enforcement with or without a warrant, that he not possess incendiary devices, such as a lighters, matches, or flares, and that he pay partial restitution of $392,128 to the fire departments and state agencies that fought and investigated the six fires that had been intentionally set by Kirk.

Jumping forward to August 2021, law enforcement officers from Cal Fire and the Mendocino County Adult Probation Department conducted an unannounced search of Kirk at his Piercy residence. In violation of terms of probation, Kirk was found in possession of three prohibited incendiary devices.

When brought to court and arraigned on allegations that he had violated his probation in this manner, defendant Kirk was remanded into custody and held no bail as a means to ensure public safety.

As an aside, it was also alleged in the violation petition that the defendant had only mustered $4,750 in payments towards his almost $400,000 restitution debt during the 34 months he had been subject to probation supervision.

Given what can only be considered serious probation violations for a serial arsonist and there being no proof issues of his violations, it might appear to law-abiding citizens that a dangerous arsonist had blown his one and only chance to avoid state prison, right?

Wrong. Instead, the California Legislature, including our local representatives, had already ridden to his rescue.

In 2020, a majority of the California Legislature came to the conclusion that court-ordered grants of felony probation lasting up to five years — as had been the accepted state of California law for many years — were victimizing and unfair to convicted felons.

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How did these longer terms of probation all of sudden become unfair to convicted felons?

It was claimed by certain legislators, particularly from Southern California, that the longer a felon is required to participate in probationary rehabilitation efforts, the greater the opportunity for these individuals to violate court-ordered terms of probation, such as obey all laws, that could result in court violation proceedings and further sanctions.

Asked today whether our local representatives signed on to these arguments, DA Eyster said the answer is unfortunately yes.

Without first seeking input or otherwise consulting with the local DAs, Sheriffs or Police Chiefs in their districts, both of our local legislative representatives, Assemblyman Jim Wood and Senator Mike McGuire, hopped on the felon bandwagon and voted in favor of taking judicial discretion away from the elected local judges and limiting judicial authority to choose how long a felon needed to be on probation.

Thus, AB 1950, having successfully passed through both houses of the Legislature, was moved to the Governor’s desk and signed — over the objection of many law enforcement and public safety-oriented groups — on September 30, 2020.

Thus, effective January 1, 2021, Assembly Bill 1950 became law. Subject to limited exceptions not applicable to defendant Kirk, AB 1950 now mandates that these judicial grants of leniency – felony grants of probation – shall no longer exceed a legislated two-year ceiling.

Moving past the politics underlying the bill, AB 1950-related appeals began arriving at the appellate courts in the months following its effective date. The new law, codified as Penal Code section 1203.1, was silent as to whether it should be applied retroactively, but the appellate courts have now interpreted the new statute to operate retroactively to protect all felons convicted prior to January 1, 2021 but who were/are still on probation after that date.

So this chronology brings us full circle and back to defendant Kirk’s current legal proceedings.

Friday morning, having reviewed an admittedly proper motion filed by the defendant’s court-appointed attorney to dismiss the pending revocation proceedings and terminate the defendant’s probation, the court had no choice but to overrule the DA’s objections and dismiss the defendant’s pending violation proceedings, terminate early what had originally been ordered to be a “no early termination” probation, release the defendant from the threat of the suspended prison term, and otherwise cut the defendant loose from supervision to go about whatever his business may be these days.

Is there a public safety silver lining in any of this? No, not really, unless one subscribes to the belief that the best way to rehabilitate convicted felons is to get them off probation faster so as to lessen the chance that they may fail to follow court orders and/or commit new violations of law.

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As for an epilogue for defendant Kirk, he still must register for life with local law enforcement where he lives as an arson offender. At his discretion, Kirk may or may not continue to make payments towards his restitution, a restitution bill that will continue to grow at the non-compounded legal rate of interest of 10%. And he remains convicted of the six separate “serious” felony offenses, each constituting a separate Strike, which the DA will charge to enhance future felony criminal proceedings should he once again cross over the line.

Concluding, please stay safe, please continue to keep defensible space around your residence and outbuildings, and please keep your eyes open for and report suspicious fire activity, especially if you see Mr. Kirk at or near the scene of a fire near you.