Raymond Lee Oyler, who was given the death penalty for setting the 2006 Esperanza fire near Cabazon that killed five U.S. Forest Service firefighters, was not the “actual killer,” as defined by current law, his attorney asserted this week as he asked the state Supreme Court to overturn five murder convictions and set aside the death sentence.
Although no one else was charged with setting the blaze, attorney Michael W. Clough suggested in a highly nuanced argument on Wednesday, Feb. 5, that a 2019 state law requires a more hands-on slaying and physical presence for a murder conviction.
The Engine 57 crew of Capt. Mark Loutzenhiser, 44, Daniel Najera, 20, Jason Robert McKay, 27, Pablo Cerda, 23 and Jess Edward McLean, 27, perished on Oct. 26, 2006, when a blast of hot air and flames struck them down as they defended the so-called Octagon House on a ridge in the San Jacinto Mountains overlooking the San Gorgonio Pass.
Oyler was accused of setting 23 fires within several months and was convicted on the murder and most of the arson counts. He denied setting the Esperanza fire.
Under the 2019 law, which is retroactive, a getaway driver in a liquor store robbery in which an accomplice killed a clerk may no longer face a murder charge, for instance. Some people convicted of murder in such cases have been resentenced.
Wednesday, Clough said Oyler’s actions did not meet the standard for a murder charge.
“When you are talking about starting a wildfire arson, there are a number of things that may enter into the two calculations I think you have to make,” Clough told the seven justices during the live-streamed hearing at the Stanley Mosk Library and Courts Building in Sacramento. “One, did the person personally kill? The second is … the causation issue. And so to be an ‘actual killer,’ you have to personally kill.”
California Deputy Attorney General Meredith S. White, in a filing in the case, said the 2019 law did not change the definition of “actual killer” and that the lack of jury instruction on a law still 10 years away did not taint the case, as Clough suggested.
“It would have been impossible for the jury to return those verdicts finding Oyler set the fatal fire without also finding that Oyler, at a minimum, was a major participant in the underlying arson who acted with reckless indifference to human life,” White wrote.
The justices heard arguments from Clough and White for about one hour, 15 minutes in Oyler’s automatic appeal of his death sentence. Justices typically rule within 90 days.
Oyler, 54, was not present. He is incarcerated at the California Institution for Men in Chino.
In 2016, Clough submitted a 464-page legal brief that outlined a raft of what he called judicial errors including failing to move the highly publicized trial from Riverside County, allowing ineffective counsel, improperly changing judges, failing to weed out potentially biased jurors and admitting prejudicial evidence.
But Wednesday justices asked attorneys to address only whether Oyler was eligible to have the new standard for felony murder applied retroactively.
“How is he not the ‘actual killer’?” Chief Justice Patricia Guerrero said. “The jury concluded the elements were met. He started the fire. There’s no question as to causation. There’s medical evidence and testimony that there were no natural causes of the deaths.”
Replied Clough: “The question of whether or not the Esperanza fire was started with the knowledge that it was going to go over the hill and that it was about to become a deadly fire, that’s an assumption that was never really proven.”
White pushed back:
“Mr. Oyler did not pull a trigger, shoot a gun (that) released a bullet then struck the victim and killed the victim, but he did ignite a fire that released a devastating force, and that fire eventually struck the victims and killed the victims. How is that any different?”
Justice Joshua P. Groban suggested that the prosecutor was asking the court to affirm a death-penalty conviction when there is an argument that Oyler did not intend to kill.
White responded that the death penalty can be imposed in such a case.
Daniel Najera’s aunt, Vivian Najera-Reed, and her husband, Jeffrey Reed, both 54-year-old Sacramento residents, sat in the courtroom.
“My observation, it seems like they were not buying his (the defense lawyer’s) argument,” she said in a phone interview. “At least five of them. The other two were a little iffy.”
Najera-Reed has been to the site of her nephew’s death for memorial services and has helped educate Inland school children about the fire.
Wednesday’s hearing was difficult for her.
“I felt strong the whole time until (the prosecutor) said, ‘They burned alive,’ ” she said. “That triggered emotions, and I had tears in my eyes. It was difficult to hear those words about Daniel.”
The Esperanza fire started about 1 a.m. on Oct. 26, 2006, and burned for five days before it was contained. It charred 40,200 acres – almost 63 square miles – and destroyed 34 homes.
The deaths in a county with a long history of wildfires prompted an outpouring of grief, as well as soul-searching by Cal Fire and the Forest Service, both of which in subsequent years would emphasize firefighter safety over protecting buildings.
The Octagon House was built on a flat promontory at 15400 Gorgonio View Road where firefighters set up a portable pump in the swimming pool. It survived the fire.
