The Soviet immigrant explained why he did not show his gun to the man who was approaching him on his Encinitas property. “No, that would be against the law,” Michael Vilkin said in his heavy Russian accent. “The sheriff deputies told me, ‘Do not brandish the weapon, it’s against the law.’”

Instead, Vilkin drew the gun out of his waistband, hidden under his shirt, and shot the large man once in the belly and then once in his head, killing him.

Prior to the fatal confrontation on March 28, 2013, Vilkin had sought advice from deputies who tried to discourage him from carrying a weapon as he worked on his property. Vilkin complained that he had been threatened by a large neighbor who demanded he stop trimming shrubbery on his own land. But deputies warned him it was not a good idea to bring a gun to a verbal argument. And, as Vilkin later recalled, they advised him against waving the gun around.

“So, if I showed it to Mr. Upton,” Vilkin said, “he would run inside the house and call 911 and say there is a crazy Russian aiming at me.” Vilkin understood he could get five years in prison for brandishing a weapon — but he believed that shooting his intimidating neighbor from a self-defense position would be another matter.

“Like, with a gun?”

“I need a detective here,” Michael Vilkin told a 911 operator as soon as she picked up the line. He gave his address, which is the location of his bare acres on 2902 Lone Jack Road in Encinitas — but his accent was so strong he had to repeat the address.

“What’s going on there?” The operator’s voice was friendly and relaxed. It was just after 9 a.m. on a sunny Thursday morning.

“Well, the neighbor assaulted me, and I shot him.”

“You shot him?” The woman’s voice got louder and had a surprised tone.

“Yes,” the Russian-accented voice confirmed.

“Like, with a gun?”

“Yes,” the man confirmed.

“Okay, this happened just now?”

“Right now,” the man answered.

“Where is he right now?” the woman asked.

“Who?”

“The person that you shot.”

“He is laying,” said Vilkin.

The 911 dispatcher didn’t understand. “He is what?”

“I shot him,” Vilkin explained, patiently.

When investigators opened the gun case, this is what they saw

The dispatcher then wanted to know where the gun was. Vilkin assured her that by the time deputies arrived, his weapon — a .44 magnum revolver — would be back inside its plastic carrying case. “I am responsible person, don’t worry about it,” he told her.

But officers who responded did worry about it, and 61-year-old Vilkin was taken into custody. He was charged with first-degree murder and held in lieu of $5 million bail for more than a year.

Conflicts upon conflicts

Vilkin married his wife Tamara in 1982, and they emigrated from the Soviet Union in 1987. They lived in New York first, and in 2000 they moved to California; they lived in different parts of San Diego County, most recently Encinitas. Vilkin had purchased the vacant lot in 2008, and during the years 2012 and 2013 he went to his lot nearly every day. He cleared brush and smoothed out rough spots. Vilkin lived in an apartment with his wife only a mile away; it was a five-minute trip to get to his land. He often worked five or six hours at a time, chopping at weeds and bushes. He said he planned to build a home on the parcel.

At first, Vilkin’s neighbors in Encinitas were cordial. Vilkin responded kindly, giving them permission to walk their dogs over his land, and he told them they could park their cars there. But when a new neighbor rented a house adjacent to Vilkin’s land, things got contentious and eventually violent.

Photo of the deceased man, John Upton

James Upton, son of John Upton

Evidence photo of the stone wall, which encroached 17 feet onto Vilkin’s land

Evelyn Zeller testified during Vilkin’s trial

John Upton, 56, rented the large home at 2916 Lone Jack Road. Upton soon made it clear that he did not like to see Vilkin cutting down the greenery.

Vilkin described their interactions as “conflicts upon conflicts.”

Upton was 6 feet, 2 inches tall, and 236 pounds; Vilkin is 5´5˝ and 165 pounds. The smaller, older man felt bullied. So, he took to bringing a loaded .44 caliber revolver inside a plastic case whenever he visited his two-acre plot. “I was getting ready for eventual confrontation that might happen.”

It is possible Upton did not understand that Vilkin was clearing brush on his own property.

Upton shared his home with his adult son James, who later recalled a conversation he had with his father. “He was just talking about what an easement actually is,” James said, “[how] it’s an un-useable piece of land that hasn’t been used for what ten years or so, and it actually doesn’t belong to anybody at that point in time.”

The bit of property in dispute was a 30-foot-wide strip used as a driveway by John Upton, his live-in girlfriend Evelyn, and his son James, who parked their cars on it. Part of the easement had been converted into a front yard for Upton’s house. Just outside the front doors of the rented home, Upton enjoyed a green lawn, with some outdoor chairs for a sitting area, all encircled by a low stone wall.

Eventually, Vilkin learned that the wall and lawn encroached on his land; in fact, protruded 17 feet into the “easement.” He declared that he had therefore “bought” those improvements and that he intended to bulldoze them away as part of his building project.

But Upton, his girlfriend, and his son were not convinced. “We referred to it as the easement; we didn’t refer to it as Vilkin’s property,” James said.

James said he saw Vilkin working on his land nearly “every day,” and the only times he ever saw his father get upset were when he had confrontations with Vilkin about the easement. After another moment of consideration, James corrected himself: “He never got upset, he got frustrated.”

James said he only had interactions with Vilkin when his pit bull got loose and went over there — and then he would go retrieve his dog; he said Vilkin never complained about his dog.

Justified

Five months before the shooting, on October 31, 2012, a deputy took a phone call from a man who wanted advice about carrying a gun.

Sheriff’s deputy Scott Hill remembered speaking with Vilkin

Deputy Scott Hill, a 14-year veteran with the San Diego County Sheriff’s Department, said he spoke to Vilkin, who told him about a neighbor who was upset about his driveway, and the neighbor yelled in an angry manner, and Vilkin wanted to carry a firearm in case something happened. “I told him it’s a very bad idea to carry a firearm when you are expecting an argument. You could make a bad choice, and you could end up arrested,” the deputy said he told Vilkin.

A week after that phone conversation, on November 7, Deputy Hill was on location at an Encinitas apartment complex. He and other deputies were near their patrol cars when a small man approached. The deputy recognized the man’s accent, and the man asked the same questions he heard a week earlier. The deputy said it was Vilkin, again seeking confirmation that he was “justified” in carrying a weapon on his own property; but the deputies on scene that day said they declined to give Vilkin the approval he wanted.

Sheriff’s deputy Marshall Abbott

One week before the shooting, on March 21, 2013, a different deputy went out to the disputed property in Encinitas. “’Cause that’s my job as deputy sheriff,” said Marshall Abbott. He has been with the department for eight years. He said he gets called out to prevent things from happening. “That’s why we have a call to preserve the peace. We go out there and we preserve peace.”

Deputy Abbott met Vilkin on Lone Jack Road in Encinitas. “He called me out there because he did not want a confrontation.” Abbott arrived around 9:30 on a Thursday morning and found Vilkin to be “very nice, very kind.”

“At first he was talking about being threatened by Mr. Upton. And I kind of asked for what kind of examples he could give me. And basically he gave me examples of [Upton’s] demeanor [and] that he had been yelled at, by him. That they had had some arguments about cutting down brush, things like that. But he didn’t give me anything I could say would be a criminal kind of threat. A criminal threat would be something like, ‘I’m going to hurt you,’ ‘I’m going to kick you,’ ‘I’m going to kick your ass,’ ‘I’m going to kill you.’ That would be considered like a criminal threat. And I didn’t have any of that at the time.”

Vilkin told the deputy there had not been any physical confrontations. “It was more of Mr. Upton’s demeanor and the way he approached Mr. Vilkin is why he was feeling threatened,” Deputy Abbott understood.

Vilkin failed to tell this deputy about the loaded firearm he commonly brought to his property.

The deputy noted that Vilkin had with him, at that time, a couple men he hired to clear brush, plus a land surveyor.

“Mr. Vilkin explained to me that he had a surveyor. I met the surveyor. He said that his easement ran down the hill; it was being used as a driveway by Mr. Upton and several other people and that he was there to clear some brush from the area and have the surveyor survey the easement.”

The deputy remembered speaking with the surveyor. “’Cause he had the county maps with him. And I just wanted to confirm that Mr. Vilkin’s easement was where he was saying it was, and that the surveyor did need to go down there, and he said yes, that was true, and that’s why he was hired.”

“I’m a land surveyor and a civil engineer,” said Vincent Sampo. He said he had gone onto the property about five months earlier and could not locate certain “monument markers,” so he asked Vilkin to remove about three feet of vegetation around a certain area.

Sampo confirmed that Vilkin owns the land but that there is an easement right over that land. An easement might enable one landowner to pass over land owned by another. Sampo confirmed that his company created a drawing that showed encroachments coming 17 feet onto Vilkin’s land.

That day, the surveyor told the deputy he needed a parked vehicle moved because it interfered with his “line-of-sight” work; he was trying to find property boundaries.

The deputy walked over to the Upton home. “The front door was open. I yelled in there, identified myself, and he said he would be out in a minute.” John Upton took a minute to secure his dogs and then he came out.

“I explained why I was there,” the deputy said. “I told him I was being asked by Mr. Vilkin to come out there and just kind of make sure there was no problems.

“I asked him if he could move the vehicle that was on the easement so Mr. Vilkin and his surveyor can complete their survey markings,” the deputy recalled. The deputy found Upton “slightly” reluctant. “He stopped several times, kind of like he was thinking about things. But I didn’t kind of catch on to that until later on when they had a little argument.”

Upton did move the car, which belonged to his 44-year-old girlfriend Evelyn. She was home at the time and watched the goings-on from an elevated deck attached to their rented home.

After Upton moved the car, the deputy spoke with him while Vilkin waited a short distance away — but within hearing range.

“He said that he was upset about Mr. Vilkin cutting the shrubs and the trees in the area because he felt that Mr. Vilkin didn’t have the money to make the road,” the deputy remembered. Upton said that because Vilkin didn’t have the money to complete the project, he felt the greenery was being destroyed “for no reason.”

“And he was upset that I couldn’t get Mr. Vilkin to stop, that I told him that a lawyer would have to go to the court and get a judge to tell him to stop — a court order.”

When Vilkin heard Upton say he had “no money,” the smaller man piped up to defend himself and began to approach. “[Vilkin] was slowly walking towards us,” the deputy remembered. The two men began to yell at each other. “Mr. Upton got pretty angry and began pointing at Mr. Vilkin and said, ‘Don’t come any closer to me, you fucking asshole.’ Something similar to that.” Vilkin stopped moving. “But then I quickly put a squash to people yelling at each other, I calmed them down very quickly.”

Upton said his landlord and the owner of another adjacent property had enough money that they could “financially destroy Mr. Vilkin.” It sounded like a legal threat.

Evelyn confirmed that she witnessed the men raising their voices and cursing each other. She also confirmed that Upton became upset when the deputy told him he would need a court order to stop Vilkin from cutting shrubbery on his own property. Evelyn said she didn’t like Vilkin cutting down the plants either. In fact, she stated, “I was really the one who was upset first.” She explained, “He was cutting everything down, making it a dirt hill.” She said there was a landslide some years earlier, during a rainstorm, and they worried that if he removed all the plants there would be more earth movement. “It potentially affected the property that we were renting,” Evelyn opined.

The deputy said he informed Upton “that if he felt so strong that there’s going to be something that’s going to be detrimental to his property because of Mr. Vilkin cutting some of the shrubbery or the grass, that he would have to get a court order for that.”

Upton complained that it would take too much time and the clearing would be done by the time he got a court order.

The deputy said he was on the property a little more than 30 minutes, until 10:12 a.m., and then he told the men, “I can’t stay here all day to make sure you guys don’t get into a fight.” He instructed the men to stay separated. And, “If there are any problems, please give me a call so that nothing gets physical between you two.”

According to the deputy, “They both agreed that they would give me a call if there was a problem.”

Upton went back into his house and Deputy Abbott walked back toward his cruiser with Vilkin. “I was confident that if there was a problem, that they would call me back out there.”

Angry and in fear

Vilkin said his unpleasant confrontations with Upton happened nearly every week for more than a year. But he was undeterred. “I am stubborn. This is my property and I will go there.”

Vilkin explained it all to the jury, during his trial for murder, in June of 2014.

That last day, Vilkin brought two workers with him. He parked his gold 1993 Cadillac DeVille sedan, with a loaded pistol in the trunk, on his property at about 8:30 a.m. Vilkin put the two men to work cutting away tall shrubs that grew directly across from Upton’s front porch, along a fence there.

Vilkin was braced for confrontation. In his mind this was a “special” occasion because he was going to cut certain tall shrubbery that Upton especially wanted to preserve because it created a privacy screen from his neighbors. “I believed that he could have become enraged,” Vilkin told the jury.

Also, “The closer I am to the rented house, the more likely I would have confrontation with Mr. Upton.” He said that was why, after he directed his workers which plants to cut, he “retreated” to a different part of his property. He said he was standing approximately 30 yards away, where he could see both his workers and the front door of Upton’s home.

“Yes, we could say I was hiding,” Vilkin said. “In a sense, I was hiding. Because my concern was that Mr. Upton would get upset that we were cutting trees in that area.

“I was just very concerned that he might do something, something very dangerous.” And that is why Vilkin said he had his gun with him; he was holding onto the handle of its large, plastic carrying case.

Vilkin pointed out: “You see, I was far away, and I did not go to him.” The prosecutor claimed that Vilkin purposefully lured Upton to his death. But Vilkin denied that he was lying in wait — he said if that was his intention he could have gotten a rifle and “I would wait in the bushes.”

It was just a few minutes before Vilkin saw Upton. “I saw him peeking out of the door, or standing on the front porch, close to his door.”

“I felt just concerned, what is coming next?... A few minutes later, probably, I took the gun out of the gun case and stuck it in the waistband.” He said he put the long pistol into his pants, on top of a T-shirt and under his long-sleeved overshirt. “My mind was not to kill John Upton. My mind was to protect myself, if I need to protect my person.”

Upton walked over to the workers and asked if they planned to cut the trees, and then he asked if they wanted him to move the car parked there. The workers and Vilkin all confirmed this, later. Then Vilkin heard Upton say, “Give me a few minutes” and the large man began to walk up the slope toward Vilkin.

“Yes, he saw me.” Vilkin said he was not staring at Upton. “I did not want to look at him all the time because it could provoke him.”

Vilkin said Upton paused to look at some of the workers’ tools that were on the ground beside the dirt path; there were a pick and an axe there. Vilkin worried that Upton might have been considering those as weapons.

“At that point, I cocked my revolver, when he was looking at the axe.” He left the revolver in his waistband, after he pulled the hammer back.

“I was afraid that he being an unpredictable person, he could come and harm me.” Upton continued to walk toward Vilkin. “Yes, he was coming closer.” Vilkin claimed that Upton yelled in a loud voice, as he approached, “Get the fuck out of here!”

“It was threatening. The voice was threatening.”

“We had an angry exchange. He said a few things and I said a few things. He told me, ‘This is not your land. Get the fuck out of here.’ I told him, ‘Are you kidding? This is my land. I will not leave.’ I was feeling both angry and in fear of him.”

He said Upton looked angry, “Enraged. Like I saw him in the last few months.... I told him, do not come closer to me.... When he was about ten feet away, I saw a pistol in his right hand.”

Vilkin said he was in fear for his life. “It was like one second, and I pulled out my revolver and shot him.” Vilkin shot Upton in the stomach. And he was surprised Upton did not drop immediately. “I did not know it hit him or not. But he made a couple more steps toward me. It went through my mind that he was wearing a bullet [proof] vest. And I screamed, ‘Stop!’ I re-cocked and shot him in the head.”

Vilkin claimed that he made no steps forward or backward. “I was standing in that spot, [the same place] where I started shooting.”

Investigators said they found no weapon near Upton’s body. The deputy who first saw the body said he turned Upton over and found a large black cell phone, a Blackberry, underneath his left leg. Upton was left-handed.

“I have been trained to shoot special way, in Russian military,” Vilkin told the jury. He said he was in the Soviet military in 1970, when he was 18, and he explained that he learned to make one shot to the torso, to disable the target, and then one shot to the head. “Yes, I fired the way I have been trained.”

“What have you done?”

After he shot Upton, Vilkin said, “I was in shock, psychologically. I remember walking a couple times, back and forth.” Vilkin said he paced back and forth for about a minute before he dialed 911.

Evelyn came out of the house after she heard gunshots and shouted to the neighborhood in general, “What the fuck was that?!” She talked to the workers and they pointed her in the direction where Vilkin was, as they hurried away.

Evelyn said at first she did not recognize the figure on the ground as her lover. Vilkin pointed the gun at her and said, “Do not approach me!” This was on Vilkin’s recorded 911 call. Evelyn ran back to the house and called 911 also.

Vilkin was sure of himself in the witness box when he stated, “And I have the right to tell anyone, on my property, anyone who is approaching me in a hostile way, to tell them, do not approach me. That is the state law.... That is the definition of defense: ‘Do not approach me.’”

I don’t need an attorney

Vilkin spoke freely with detectives the day he was arrested. And again two days later. “I told them I don’t need an attorney.”

He said he took aim more carefully for the second shot because Upton was still moving. Vilkin modestly said, “He was close, how could I miss?”

Vilkin also granted interviews with reporters for local news stations. He freely admitted shooting his neighbor.

“I did everything reasonable to avoid deadly force,” Vilkin insisted. “I did not plan to kill him. I did not plan to lure him out, and I did not lure him out. I shot him because I saw a pistol. There was no other choice.”

Vilkin’s confidence proved to be unfounded. A jury declared Vilkin guilty of first-degree murder, plus assault with a deadly weapon for pointing a gun at Evelyn.

The sentencing date for Vilkin is set for March 18 in San Diego’s North County Superior Courthouse.

This whole thing is crazy

Upton’s son James remembered a conversation he had with his dad the day before he died. He said they talked about the fact that they lived in a rental property and so why would they care if he cuts down trees? “I said, we’re moving, we’re renting the place, what does it matter?” James remembered. “My dad said, ‘I don’t like people cutting trees down, period. It’s not fair.’”

But by the end of their conversation, “We both agreed on the same, that this whole thing is crazy, and we’re moving anyway. Trees don’t matter, we’re not going to be there.”

James said his dad was making arrangements and planned to move away within a few weeks.