West Sacramento Officer Acquitted

Posted by Christopher W. Miller, Esq.

The allegations that led to criminal charges against Barcenas were made last May by a high school student the officer had counseled repeatedly throughout the school year about her habitual truancy and off-campus criminal activity. The student claimed Barcenas had made inappropriate comments to her during a meeting on May 30, 2001, and had urged her not to tell anyone about his conduct toward her. When she was questioned about the incident, the student “recalled” Barcenas had hugged and kissed her in a high school storage room several months earlier. She also alleged several other minor incidents she previously had failed to report.

Judge Dismisses Felonies At Preliminary Hearing

Despite pleas from the West Sacramento Police Officers Association and several prominent members of the community, as well as letters from me suggesting the student was fabricating her allegations, Yolo County District Attorney David Henderson decided to file felony lewd conduct and false imprisonment charges against Barcenas last fall. At the preliminary hearing, however, Judge Sweet agreed to dismiss the lewd conduct felony and reduced the false imprisonment charge to a misdemeanor. The prosecutor dismissed one misdemeanor count, alleging a violation of Penal Code section 647.6, annoying or harassing a minor, leaving four misdemeanor charges for trial.

Before trial, however, the district attorney filed an amended complaint adding yet another charge of annoying and harassing the student. Trial started April 9, 2002, on five misdemeanor charges, including the three counts of Penal Code section 647.6(a) and one count each of false imprisonment and dissuading a witness.

The prosecution’s theory was that the student trusted and looked up to Barcenas, making her a “reluctant victim” and a “vulnerable victim” with no motive to fabricate the charges. She described specific conduct and statements by Barcenas, although her direct testimony was punctuated with “I don’t know” and “I don’t remember” when asked questions such as “How did his actions make you feel?” and “Why didn’t you report the incident earlier?” She testified, contrary to the expectations of the obviously chagrined prosecutor, that Barcenas’ alleged kiss and hug made her feel “secure”. She alleged no sexual misconduct in her trial testimony.

The complainant also testified Barcenas had made inappropriate sexual comments to her while recruiting her as an alcohol decoy and at a school dance. The prosecutor spent most of his time with the juvenile, and with Barcenas on cross-examination, trying to show the alcohol decoy recruitment was a pretext for improper contact with the student. Barcenas’ undisputed action in allowing the student into a school dance without identification, the prosecutor ridiculously argued, showed his unnatural fondness for the complainant.

The juvenile’s habitual truancy, her arrests for shoplifting, and her general defiance of authority made for lively cross-examination on the third day of trial. Under my questioning, she accused the investigating officer, Detective Mark Tingley, of lying in his report; admitted a prior shoplifting arrest of which we were unaware; described physically impossible conduct by Barcenas; and got angry with me when I suggested she was lying about reporting the incident to her friends. She accused an attendance clerk, who was one of the prosecution’s key witnesses of lying. That witness accused the student of lying! At my request, the judge instructed the jury they could use the fact of the complainant’s misdemeanor shoplifting to judge her credibility.

Judge Rules For Defense On “Fresh Complaint” Legal Issue

An interesting legal issue was raised by the proffered testimony of witnesses the prosecution wished to have testify as to what the student had told them about the February and May incidents. The judge admitted the testimony of the attendance clerk, to whom the minor had spoken within an hour of the meeting, under the “excited utterance” exception to the hearsay rule. The clerk testified to the content of the minor’s statements as well as to the minor’s demeanor while reporting the alleged incidents.

The prosecutor sought to introduce similar testimony by three other school officials to whom the juvenile had complained. He relied on outdated cases under the “fresh complaint” doctrine, an evidentiary rule permitting witnesses to testify about a complaint of sexual assault for the purpose of rebutting a defense claim that the delay in reporting an incident suggests fabrication. During in limine motions, however, I provided the court with People v. Brown (1994) 8 Cal.4th 746, a more recent case in which the California Supreme Court limited the fresh complaint doctrine to nonhearsay testimony to support the fact a complaint was made and excluded as hearsay any testimony about the content of the complaint itself. The judge restricted the prosecution’s evidence accordingly and gave the jury a limiting instruction I proposed based on language in Brown.

Once the prosecution’s case-in-chief was completed, I moved to dismiss the charges under Penal Code section 1118.1, arguing to the judge the prosecutor had failed to present sufficient evidence to go to the jury. The judge granted the motion as to one count, dismissing allegations arising out of Barcenas’ contact with the minor in the fall of 2000, and asked the prosecutor to modify another count to narrow the issues for the jury. We were back to four counts at the start of the defense case.

Alleged “Witness” Absent On Date Of Incident

My defense strategy was to use school records and statements by both prosecution and defense witnesses, as well as by the complaining witness herself, to demonstrate the juvenile was “a truant, a thief, and a liar” motivated by a desire to be on unsupervised “independent study” away from school.

I was able to use subpoenaed employee attendance records to show the attendance clerk who suddenly claimed, after three interviews by the investigator and prosecutor, to remember seeing Barcenas go into the storage room with the student, was not even working on the dates alleged. The poor attendance records of the clerk and the complainant demonstrated neither was at the school during the time periods the prosecution claimed the events occurred.

The student’s academic counselor, a prosecution witness, acknowledged on cross-examination that the student had lied to her during their counseling sessions. A cousin of the complainant under oath testified she would not trust her. West Sacramento Police Officer Sam Hernandez told the jury the girl had lied to him in December 2000, when he had interviewed her while investigating a missing person’s report.

Barcenas Testifies In His Own Defense

Barcenas’ three decades of experience as a deputy sheriff, police officer and founding member of the West Sacramento Police Department, juvenile division detective and school resource officer gave him a tremendous credibility with the jury which the prosecutor’s ineffective cross-examination was unable to diminish. He was well-prepared to testify after several hours spent planning for direct and cross-examination. As the judge commented after the verdict, Barcenas was a very credible witness in his own defense.

As Barcenas explained, he had attempted through repeated intervention with the student and her family to reduce her truancy and criminal activity by involving her in campus activities, enforcing school attendance laws, and counseling the Spanish-speaking parents to control her off-campus behavior. He denied any improper conduct with the student. On May 30, 2001, the day the student reported Barcenas to authorities, he had confronted her angrily about her continued flaunting of authority and her total disregard for school rules and discipline.

A school secretary corroborated Barcenas’ testimony with her own statement the student was “not upset” the day Barcenas confronted her in the vice principal’s office, but instead was acting like “an angry teenager.” I used the school’s truancy officer to establish the student was an “incorrigible,” out of control teenager who had kicked out the rear window of Barcenas’ patrol car while he was transporting her to the police department in the fall of 2000. The truancy officer also testified to the juvenile’s dismal attendance and discipline records and corroborated the propriety of Barcenas’ various attempts to intervene in her behavior.

The final defense witnesses were a member of the school board, Irene Eklund, whose son Barcenas had saved from a life of drugs, and a West Sacramento police employee, Debra Lugo, the secretary of the West Sacramento POA. Both have known Barcenas over 20 years and testified compellingly to his character for truth and veracity.

This case, simply put, marked a profound failure by the Yolo County District Attorney’s Office to investigate a serious case before deciding to ruin the career of a 26-year law enforcement veteran. Barcenas was a founding member of the West Sacramento Police Department and he had a long history of battling the administration over discrimination, discipline and association matters. The latest, and last, battle for Juan Barcenas could not have been won without the unqualified support of the PORAC Legal Defense Fund and the executive board of the West Sacramento Police Officers Association. “I would be in the unemployment line if it were not for LDF,” Barcenas has said. His acquittal was the vindication of an officer of the highest integrity, reputation and professionalism.

About The Author

Christopher W. Miller is a former deputy district attorney who now provides representation to PORAC LDF clients throughout northern California as an attorney with Mastagni, Holstedt & Amick in Sacramento.