The San Bernardino County District Attorney’s Office has cleared all five of the Barstow police officers involved in the fatal shooting of Diante Yarber that took place in the parking lot of a Walmart in the county’s northernmost city last April.
“Based on the facts presented in the reports and the applicable law, the use of deadly force by all involved officers was a proper exercise of their rights of self-defense and defense of others and therefore their actions were legally justified,” according to a statement from the district attorney’s office provided with the official review of the shooting that was released yesterday, Thursday November 29.
The 26-year-old Yarber was shot at least ten times by Barstow police officers Jimmie Walker, Vincent Carrillo, Matthew Helms and Corporal Jose Barrientos after the quartet had been summoned to the parking lot by the report of a suspicious vehicle on April 5.
In reaching the conclusion that the shooting was justified, the report relies upon statements by the participants; statements by witnesses; a coroner’s autopsy; citations of the law with regard to the use of deadly force by a peace officer, the right to self defense or the defense of another, effectuating an arrest, the nature and level of proper force, retreat and avoidance, imminence of perceived danger and reasonableness in the application of policing authority; video footage of the incident as it was ongoing from multiple vantages including officer-worn and surveillance cameras, and photos taken after the fact.
Prior to moving into the narrative of the case, the 45-page report sets its tenor in the “Background Information” section near its outset on page three by remarking, “Diante Yarber has a prior criminal history that includes convictions of offenses” which it then listed, together with their penal code section references and case numbers, those being “Discharge of Firearm with Gross Negligence… Possession of Controlled Substance… Corporal Injury to Child’s Parent… Resisting, Obstructing, or Delaying a Peace Officer… Escape from Arrest… Battery…”
In the reports “Factual Summary,” it states, “On April 5, 2018, at around 10:53 in the morning, officers from Barstow Police Department were dispatched to the Walmart located at [301] Montara Road, in the City of Barstow, regarding a suspicious vehicle. Witness #3, the reporting party, noticed a black Ford Mustang, occupied by two black males, driving around the parking lot watching vehicles. Dispatch ran the license plate number provided by Witness #3 and advised officers the vehicle came back to a registered owner with last name of Yarber. Officer Andrew Buesa, Officer Vincent Carrillo, Officer Matthew Helms, Officer Jimmie Walker, and Corporal Jose Barrientos were familiar with the last name of the registered owner and responded to the call. The officers believed the Mustang may be occupied by Diante Yarber. The officers were aware Yarber was a gang member known to carry guns and run from law enforcement. Yarber was wanted as a suspect in a stolen vehicle investigation. There was a probable cause declaration as well as a wanted flyer displayed at the Barstow Police Department. In addition, officers knew Yarber had an outstanding arrest warrant for a probation or parole violation. The officers who responded to the call for service were in police uniforms and driving marked police vehicles. Officer Carrillo activated the overhead lights on his patrol vehicle when he initiated a traffic stop of the Mustang. Yarber opened the driver’s door and looked back at Officer Carrillo. Officer Carrillo gave Yarber several commands in a loud clear voice for Yarber to ‘Step out of the vehicle,’ ‘Turn off the ignition,’ and ‘Let me see your hands.’ Yarber was smoking a cigarette and refused to comply with Officer Carrillo’s commands. Instead, Yarber shut the driver’s door, put the Mustang in reverse, and struck the front of Officer Carrillo’s patrol vehicle. After Yarber struck Officer Carrillo’s patrol vehicle, Yarber put the Mustang into drive and accelerated forward toward Officer Walker. Officer Walker pointed his firearm at the Mustang and ordered, ‘Stop. Stop right there.’ The Mustang stopped a few feet in front of Officer Helms’ patrol vehicle which blocked the Mustang’s path. Yarber immediately put the Mustang in reverse and accelerated backward. The Mustang’s front passenger door opened and the passenger, Witness #2, got out of the vehicle while it was moving. Witness #2 was struck and injured by the Mustang after he got out of the vehicle. The Mustang then struck Corporal Barrientos’ patrol vehicle as it continued to drive in reverse. Yarber drove the Mustang backward directly at Officer Carrillo who was standing behind the Mustang. Officer Carrillo was forced to run backwards to avoid being struck by the Mustang. Officer Carrillo reached out to the Mustang with his left hand to try and avoid being run over. The Mustang struck Officer Carrillo’s left thigh before Officer Carrillo was able to get out of the way of the moving vehicle. The Mustang continued to drive in reverse and collided with Officer Buesa’s patrol vehicle. Yarber then put the Mustang into drive and accelerated forward in the direction of Officer Carrillo and Corporal Barrientos. Afraid for their safety, Officer Carrillo and Corporal Barrientos fired their weapons at the Mustang. Afraid their partners were about to be killed, Officer Walker and Officer Helms fired their weapons at the Mustang.”
Much of the report’s narrative relies upon witness statements, which are intersticed with a general narrative that essentially recapitulates the district attorney’s office’s narrative. Two of the key witnesses in this regard are two of the three passengers who were in the vehicle with Yarber when he drove into the Walmart parking lot, where he had returned to pick up a woman he had driven there earlier so she could shop. One of those in the car was Yarber’s cousin, the owner of the Mustang, who was designated by the district attorney’s office as Witness #4. He was seated in the rear driver’s side seat of the Mustang during the events in question. The Sentinel has identified him as Weslie Yarber. Seated in the rear passenger seat seat was Witness #1, a female friend of Yarber’s, whom the Sentinel has identified as Marian Tafoya. Witness #2, Yarber’s half-brother, whom the Sentinel has identified as Marlon Hawkins, was seated in the front passenger seat.
Witness #2, who was injured when he exited the vehicle and was hit by the car door as Yarber backed up, was interviewed by Detective Claus Hartleben of the sheriff’s department at the Arrowhead Regional Medical Center, the main campus of the county hospital in Colton, but was not cooperative in helping Hartleben or the district attorney’s office in establishing a narrative. “Witness #2 stated he did not know anything and did not know what happened during the shooting,” the report states. “Witness #2 was unwilling to provide any additional information to Detective Hartleben.”
Witness #1 and Witness #4 did, however, speak with investigators, and the district attorney’s office seized upon certain elements of their statements to support the finding that the shooting of Yarber was justified.
Witness #1 indicated that after Yarber was in a parking stall and was approached by officers, he shut off the car’s engine, opened the car door and indicated to the officers that he was going to comply with their order that he exit the vehicle but then closed the door and started the car, indicating he was going to leave. Witness #1 also stated that Witness #4 told Yarber to stop the car but Yarber disregarded him.
Witness #4 was interviewed by Hartleben and another sheriff’s detective, Julius McChristian. According to the report, Witness #4 essentially confirmed Witness #1’s account that Yarber initially indicated he was going to comply with the officers’ demands that he get out of the vehicle, adding that Yarber was at that point complying with the officers’ instructions in that he “showed his hands” and that “Yarber’s palms were facing the officer as he partially opened the door.” According to the report, Witness #4 stated that shortly thereafter “Yarber turned to his right, closed the driver’s door, put the car in gear and attempted to drive off. Witness #4 did not know why Yarber was not following the officer’s commands nor did Witness #4 know why Yarber attempted to drive away. Yarber drove forward, backed up, and attempted to pull forward again. Witness #4 and Witness #1 told Yarber, ‘What are you doing? Stop. Wait. What’s going on? Don’t pull off.’ Witness #4 said… Yarber did not reply and continued driving the Mustang forward and backwards. Witness #4 said Yarber ‘punched’ the gas each time he traveled forward and backwards.” Also according to the report, “Witness #4 stated he knew law enforcement had been looking for Yarber for a possible probation violation. Witness #4 believed Yarber wanted to run from the police because Yarber knew he had violated his probation.”
The report also laid the foundation for a legalistic justification of the action of the police officers by relating the statements of Witness #3, who in essence had precipitated the fatal event through a report to the police department relating to the black Mustang. Witness #3 was interviewed by Sheriff’s Detective Narcie Sousa on April 5, 2018, who established that Witness #3 had come to Walmart with her son the morning of April 5 “and parked in a stall located a couple spaces away from a black Ford Mustang. Witness #3 exited her vehicle, grabbed her son, and walked toward the store. Witness #3 noticed two black males sitting inside the Mustang with the windows rolled down. Witness #3 shopped inside the store for approximately thirty minutes. When Witness #3 exited Walmart, she noticed the black Mustang had moved to a different location. Witness #3 believed the two males may be breaking into vehicles. Witness #3 took a photograph of the rear license plate of the Mustang as it drove to a different area of the parking lot. Witness #3 called Barstow Police Dispatch and advised them of the Mustang and provided a license plate number.”
Witness #3’s statement established that the officers had probable cause to attempt to stop the Mustang.
The report references 13 witnesses in total, with nine of those being individuals who had come to Walmart that morning and were in or near the parking lot when the confrontation and shooting occurred. Those witnesses in essence established that there were police lights flashing, that the officers at some point were surrounding the Mustang, that they were giving commands to exit the vehicle, that the commands were not complied with, that the Mustang was moving in reverse rapidly, that the Mustang crashed into two vehicles, that the officers were yelling at the driver to stop the vehicle, and that gunshots ensued.
The report also provided statements from the officers. According to the report, “At one point, Yarber drove in reverse again toward Officer Carrillo’s patrol vehicle. Yarber made a sharp reverse turn and drove in reverse northbound in the center of the aisle. Officer Buesa saw Officer Carrillo behind the Mustang putting his hand out. Officer Buesa believed Officer Carrillo had been struck or run over by the Mustang. Officer Buesa put his patrol vehicle in reverse and tried to block Yarber’s path. Yarber collided with the right rear quarter panel of Officer Buesa’s patrol vehicle. Officer Buesa injured his back during the collision. Yarber drove forward after he struck Officer Buesa’s patrol vehicle at which time Officer Buesa then heard gunshots. Officer Buesa did not know where the gunshots were coming from. Officer Buesa estimated he heard ten to fifteen shots fired. Officer Buesa quickly got out of his patrol vehicle. Officer Buesa noticed the Mustang starting to coast to the rear at a slow pace.”
According to the report, “Yarber was pronounced deceased by Barstow Fire Department Firefighter Paramedic Zackary Courtney at 1129 hours at the scene.”
The report further references postmortem examinations which show Yarber sustained ten gunshot wounds, one to his left arm back to front, right to left, and upward shattering his ulna; another to his left arm, from back to front, right to left, and upward; a third to his left arm, from “right left” and upward; a fourth to his left arm from back to front, right to left, and upward; a fifth to his left arm from front to back, left to right, and downward with “associated injuries of projectile defects of the left shoulder muscle”; a sixth to his left upper back (superior) from front to back, left to right, and upward; a seventh to his left upper back (inferior) from back to front, left to right, and upward; an eighth to his “right and left chest noted on the right lower back” from right to left, back to front, and upward; a ninth to his right upper chest from front to back, left to right, and upward; and a tenth shot to his right arm evidencing a graze entry wound on the anterior right forearm with no direction of the wound path noted. An audio analysis of a cell phone recording of the shooting done by the Sentinel earlier this year found there were at least 38 shots fired.
The report also provides “Public Background Information on Officer Walker” and “Public Background Information on Officer Buesa.” That information relates to five counts filed against Walker in 2010 related to his involvement in a drunken “hate crime” assault against an African-American couple that involved the use of racial epithets. The report gives a sanitized version of that occurrence, noting that Walker entered a plea to Penal Code Section 415(1) disturbing the peace by fighting or challenging to fight and Penal Code Section 647(f) public intoxication. The report notes that a police officer board of rights panel in 2004 found Officer Buesa, who then worked for the Los Angeles Police Department, guilty of misconduct relating to a 2002 arrest and recommended he be discharged. On September 29, 2004, the Los Angeles chief of police adopted the recommendation that Officer Buesa be terminated for failure to report the use of force against a suspect. He was fired.
The San Bernardino County District Attorney’s Office routinely finds all law enforcement officer shootings that occur within its 20,105 square mile jurisdiction, both fatal and non-fatal, to be justified. In June, shortly after he was defeated in his bid for reelection, District Attorney Mike Ramos provided an assurance that before he is to leave office in January his office would make a finding that Yarber’s shooting was justified and that criminal charges against the involved officers are unwarranted.
The Yarber report embodies certain inconsistencies and contradictions, both internal and external.
The report relates, “Yarber was smoking a cigarette and refused to comply with Officer Carrillo’s commands.” Under the heading “Toxicology” the report states “Chest blood and vitreous fluid were collected from Yarber during the autopsy. Toxicology results for the chest blood sample were listed as follows: • Ethanol 80 mg/dL • Blood Alcohol Concentration 0.080 g/100mL • Cocaine 120 ng/mL • Cocaethylene 170 ng/mL • Benzoylecgonine 1700 ng/mL • Delta-9 Carboxy THC 7.8 ng/mL • Delta-9 THC 1.5 ng/mL.” The toxicology analysis makes no mention of metabolites from tobacco in Yarber’s system.
The report notes that officers Buesa, Helms, Walker, Carrillo and Corporal Barrientos were equipped with Axion body cameras that captured video of the incident and that the dashboard cameras in the patrol vehicles of Officer Helms, Officer Carrillo, Officer Walker, Officer Buesa, and Corporal Barrientos were activated and recording, as well. In addition there were five surveillance video camera recording activity in the Walmart parking lot that day which recorded some of the activity related to the shooting. That video footage was obtained from Walmart. The district attorney’s office, while referencing the video footage in making the case that the shooting was justified, has not released and continues to withhold the actual footage.
The report also omits crucial information that would allow for independent analysis of the veracity of its contents, such as the names of witnesses, as well as references such as the address of the Walmart.
In a deviation from the district attorney’s office’s customary protocol, the report clearing the officers is not signed by any single prosecutor in the office and a supervisor but is rather attributed to the “San Bernardino County District Attorney’s Office.”
In its conclusion, the report states, “Based on the facts presented in the reports and the applicable law, Corporal Barrientos’ use of deadly force was a proper exercise of Corporal Barrientos’ right of self-defense and defense of others and therefore his actions were legally justified. Based on the facts presented in the reports and the applicable law, Officer Carrillo’s use of deadly force was a proper exercise of Officer Carrillo’s right of self-defense and defense of others and therefore his actions were legally justified. Based on the facts presented in the reports and the applicable law, Officer Helms’ use of deadly force was a proper exercise of Officer Helms’ right of defense of others and therefore his actions were legally justified. Based on the facts presented in the reports and the applicable law, Officer Walker’s use of deadly force was a proper exercise of Officer Walker’s right of defense of others and therefore his actions were legally justified.”
-Mark Gutglueck