WEST SACRAMENTO OFFICER
ACQUITTED
By Christopher W. Miller,
Esq.
Retired West Sacramento
Police Officer Juan Barcenas was acquitted by a Yolo County jury on
April 17, 2002, of all four misdemeanor counts against him arising out
of allegations he hugged, kissed and made inappropriate comments to a
minor female student while he was a school resource officer for the
Washington Unified School District in 2000-2001. I represented Barcenas
in the six-day trial presided over by Superior Court Judge Michael N.
Sweet.
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.
LDF Home Page | News
Article Index
