Prosecutor: Encinitas Man Killed Neighbor In Dispute Over Shrubbery, Defendant Claims Self-Defense

Written by Kelly Wheeler

An Encinitas man shot and killed a neighbor with whom he had an ongoing dispute over the cutting of bushes and trees on the defendant's vacant lot in Olivenhain, a prosecutor said today, but a defense attorney said his client fired in self-defense.

Michael Vilkin, 62, is charged with first-degree murder in the March 28, 2013, death of 56-year-old John Upton, who gained fame for his crusade to rescue Romanian orphans living in nightmarish conditions during the communist dictatorship of Nicolae Ceausescu.

Vilkin is also charged with assault with a deadly weapon for allegedly pointing his gun at Upton's girlfriend when she came to check on the victim.

Deputy District Attorney David Uyar told jurors that the day he died, Upton had plans to move out of his rented Encinitas home on Lone Jack Road, but Vilkin had plans of his own.

Vilkin had purchased a .22-caliber gun and a .44-caliber Magnum revolver in order to carry out his plan to shoot and kill the victim, Uyar said in his opening statement.

The day of the shooting, Vilkin showed up with two workers to cut bushes and shrubbery on his property adjacent to Upton's home.

Upton -- who the workers described as a "nice guy" -- offered to move his car out of the area, Uyar said.

When the victim walked up an easement and approached Vilkin, the defendant "calmly and cooly" shot him in the abdomen from close range then fired again, hitting Upton in the head, according to the prosecutor.

Upton's girlfriend, Evelyn Zeller, heard the shots and came running outside, but when she approached her boyfriend's body, Vilkin pointed his gun at her and told her "not to come any closer," according to Uyar.

Arriving officers found Vilkin's Magnum in a case, but no other weapons were found near Upton's body, the prosecutor said.

Defense attorney Richard Berkon told the jury that Vilkin killed Upton in self-defenseand that the killing was "justified."

Berkon said Upton had been bullying, intimidating and cursing at Vilkin for months because he didn't like the defendant clearing trees and ruining the view.

In August 2012, Vilkin bought the .22-caliber gun to protect himself from Upton and later bought the Magnum, Berkon said.

Vilkin complained about Upton to sheriff's deputies, but they said it didn't constitute a threat, Berkon told the jury.

The day of the shooting, as his workers cleared brush, Vilkin stood up on a hill and put his gun in his waistband, just in case Upton came out to confront him, his attorney said.

About 30 minutes later, Upton approached saying "Do me a favor!" and Vilkin thought he saw a gun in his hand and shot him, Berkon said.

When the bullet didn't stop Upton, Vilkin shot him a second time, Berkon told the jury.

After the shooting, Vilkin called 911 and told authorities that he was the person who fired the shots because "he had nothing to hide," his attorney said.

A cellphone was located under Upton's body.

Vilkin faces 35 years to life in prison if convicted.

—City News Service