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People v. Zuniga

OPINION FILED AUGUST 14, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

CARLOS ZUNIGA, A/K/A JOSE J. RIVERA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS R. FITZGERALD, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendant was convicted of burglary, attempt armed robbery, and aggravated battery. Judgment was entered on the convictions for burglary and attempt armed robbery. *fn1 He was sentenced to 20 years for attempt armed robbery under the extended-term statute (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2) but received no sentence for the burglary conviction. On appeal, defendant contends that elements of the burglary offense were not proved beyond a reasonable doubt and that the extended-term sentence was improper.

Father George Klein, a Catholic priest, testified that while walking in the courtyard between St. Benedict's Church and rectory in the early evening, he noticed a broken window in the church basement; that he entered the church (which had been locked) and went to the basement; that upon hearing footsteps and a crashing noise coming from the floor above, he went upstairs where he encountered defendant; that the (Klein) said, "What do you want in there? I am a priest" and, as he was going through the door, the man struck him on the left shoulder and knocked him down; that Klein got up and asked defendant what he wanted, to which he replied, "I want money"; that Klein then ran to the altar, with defendant pursuing him and brandishing a metal rod 4 to 5 feet long; that Klein, pursued by defendant, then escaped down the center aisle to the rear of the church, but realizing the doors were chained shut he ran down a side aisle, exited through a side door followed by defendant, and he began shouting for help; that defendant came out of the church still carrying the rod; and that bystanders who came to Klein's aid forced defendant to drop the rod and held him until the police arrived.

Eugene Cottini testified that he saw defendant running across the street with two men behind him; that he followed them and, when he turned a corner, he saw defendant with a metal pipe in his hand and heard Klein saying, "Drop that. Drop that. Put it down"; that defendant complied and, while he and another man were holding defendant's arms, he said he had been looking for silver and asked for leniency; that when the police car arrived, defendant struck the other man, who had just released defendant's arm, and tried to escape but was caught by the police.

Kevin Phillips testified that he was in his automobile when he heard Klein calling for help, and he saw defendant coming from the church carrying a metal bar 4 to 5 feet long; that he, Klein, and two other men pursued defendant to the street corner where he was persuaded to throw down the pipe; that defendant asked for a "break" and said he was only stealing for his children; that with one man holding each of defendant's arms, he broke loose and struck one of the men but was subdued and handcuffed by the police.

OPINION

• 1, 2 Defendant initially contends that the elements of the burglary charge, as alleged in the information, were not proved beyond a reasonable doubt. Section 19-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 19-1(a)) defines the offense of burglary, in relevant part, as follows:

"A person commits burglary when without authority he knowingly enters or without authority remains within a building * * * or any part thereof, with intent to commit therein a felony or theft."

The information charged defendant with burglary in that, without authority, he knowingly entered St. Benedict's Church with the intent to commit armed robbery therein. Implicit in defendant's position is the point that a fatal variance existed between the offense charged and the proof adduced at trial. For such variance to vitiate a trial, it must be material and of such character as may mislead the accused in preparing his defense or expose him to double jeopardy (People v. Figgers (1962), 23 Ill.2d 516, 179 N.E.2d 626), and the purposes of the material allegations of a burglary charge are served if they show that the burglarized premises were not the property of the accused; that he was able to prepare for trial; and that he can plead acquittal or conviction in bar of subsequent prosecution for the same offense (People v. Tripkovich (1972), 6 Ill. App.3d 37, 284 N.E.2d 323).

On the basis of the record, we conclude that defendant was not misled by the information in the preparation of his defense, nor does it appear that he would be subjected to future prosecution arising from an information predicated upon the instant occurrence. Moreover, the information adequately apprised defendant of the charge, as it set forth the requisite elements of unlawful entry and ownership of property by someone other than defendant. We believe, therefore, that the information was consonant with the proof at trial in all essential respects.

As to the sufficiency of proof, defendant argues that the State failed to prove he had formed the intent to commit armed robbery at the time he entered the church. The record indicates to the contrary in the testimony of Father Klein that the church was locked on the evening in question; that he noticed a broken window in the basement as he entered the church that night; that shortly after he entered, he was struck with a metal rod by defendant; that defendant twice demanded money from him; and that defendant never had permission to enter or remove property from the church.

Defendant also sought to negate his responsibility for the alleged offenses by reason of the alcoholic liquor he drank and drugs he took. He testified to drinking wine on the morning of the crime and ingesting a quantity of the drug talwin and a number of tranquilizers; that during the day, he drank more than 20 beers along with some scotch and consumed additional talwin and tranquilizers; and that he did not remember either being in the St. Benedict's Church or hitting Father Klein. Contrary to defendant's testimony, Eugene Cottini, Kevin Phillips, and Officer James Bonk testified that defendant's speech and gait were not impaired and that they did not detect the odor of alcohol on his breath at the time of the arrest. Moreover, Investigator Joseph Mirus testified that when he interviewed defendant at the police station on the night of his arrest, defendant said that he had not been in the church but was on the corner selling "pot" when Klein shouted at him and several people began beating him.

• 3 The offense of burglary is complete upon entering with the requisite intent. (People v. Palmer (1980), 83 Ill. App.3d 732, 404 N.E.2d 853; People v. Rhodes (1980), 81 Ill. App.3d 339, 401 N.E.2d 237; People v. Jefferson (1978), 64 Ill. App.3d 200, 380 N.E.2d 1070.) The elements of the offense, including the intent, can be inferred from the facts and circumstances in evidence. (People v. Fisher (1980), 83 Ill. App.3d 619, 404 N.E.2d 859; People v. Davis (1977), 54 Ill. App.3d 517, 369 N.E.2d 1376.) We believe that the testimony presented here was sufficient to create a question for the jury, and we conclude that the evidence was not so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of defendant's guilt. People v. Sumner (1969), 43 Ill.2d 228, 252 N.E.2d 534.

• 4, 5 The State calls attention to the fact that no sentence was imposed for the burglary conviction, and it urges that the question as to its propriety cannot be considered on review. A judgment of guilty in a criminal case is not final without a sentence (People v. Rose (1969), 43 Ill.2d 273, 253 N.E.2d 456; Ill. Rev. Stat. 1979, ch. 38, par. 1005-1-12) and thus is not appealable until there is a sentence (People ex rel. Filkin v. Flessner (1971), 48 Ill.2d 54, 268 N.E.2d 376). However, on the authority of People v. Scott (1977), 69 Ill.2d 85, 370 N.E.2d 540, where a case is properly on appeal from a final judgment on another offense, a reviewing court is empowered under Supreme Court Rule 366 (Ill. Rev. Stat. 1979, ch. 110A, par. 366(a)) to review the conviction of an offense for which no sentence was imposed and, upon affirming, to remand for ...


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