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People v. Calderon

OPINION FILED OCTOBER 23, 1981.

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

v.

DENNIS CALDERON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. VINCENT BENTIVENGA, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of the offense of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2) and sentenced to nine years in the penitentiary. On appeal, he contends that: (1) his warrantless arrest in his home was unauthorized and made without probable cause, mandating the suppression of the evidence obtained as a result therefrom; (2) the trial court erred in failing to suppress a statement given by defendant prior to receiving Miranda admonishments; and (3) the trial court abused its discretion when it employed an arbitrary structure for determining defendant's sentence and when it failed to consider his rehabilitative potential in assessing the penalty.

The pertinent evidence adduced at trial is as follows:

Junior Luciano testified that he owned a jewelry store on 26th Street in the city of Chicago. On February 24, 1979, he closed the store at 9 p.m. Since he had no safe at the store, he put jewelry and the receipts of the day in a briefcase and a plastic shopping bag and placed them in the back seat of his car. Luciano dropped off his wife and children at his home at 1061 North Marshfield at about 10:30 that evening. He then drove southbound on Marshfield to find a parking space. As he was parking his car on the west side of the street, he noticed a green car parked directly opposite of his car on the east side of Marshfield facing north with two persons in it. It was dark, and there was a lot of snow on the ground.

He got out of the car and reached for the briefcase and bag. When he turned around, a man standing a few feet away from him pointed a gun at him and yelled, "Give me the green." Another man was positioned on the side of the green car. The car's engine was running, the headlights were off, and the passenger's door was open. Both wore nylon stockings over their faces.

Luciano told the gunman that everything was in the briefcase. The man searched him, picked up the bag and the briefcase, and walked backwards to the green car. The gunman then entered the driver's side, the other man got in the passenger's side, and they drove off. Luciano pulled out his gun and fired two or three shots at the car. One of the shots shattered the back window of the car and it crashed into a parked car about three houses north of the crime scene.

The two men exited the car and ran north on Marshfield. Luciano pursued them. The gunman, who was then carrying only the briefcase, fired a shot at Luciano. Luciano ducked into a pile of snow, and returned a shot at the two men as they ran northbound. He followed them as they ran north to Division and east to Milwaukee, but then lost track of them. When Luciano returned to the crashed car, the police were there. The assailants had left the shopping bag containing the jewelry in the car.

At about 4 o'clock the next morning, Luciano went to the police station and identified some jewelry as that which had been placed in the briefcase the previous night. Later, at about 7 o'clock that evening, he viewed a lineup and picked out a man as the one who had accosted him with the gun. He had previously known this person as "Gregory." Gregory had been in his sister-in-law's wedding party and was once a visitor at Luciano's house. Luciano later learned his name to be Gregory Buenfil. Defendant was also present in the lineup, but Luciano did not identify him.

According to Luciano, there had been $700 in cash in his briefcase, but he only recovered $141. The jewelry taken was valued between $15,000 and $25,000.

Paul Gonzalez testified that he had been married to Ida Sonya Gonzalez at one time and they had lived at 1040 W. Hollywood in Chicago. He had owned a 1972 green Camaro during his marriage to her, but the car was awarded to her in their divorce settlement. He did not have possession of the car, nor did he see it for five months previous to the day of the crime.

Investigator Ralph Vucko of the Chicago Police Department testified that he went to the police station at about 11:30 p.m. on February 24, 1979, and spoke to Luciano and some other police officers. He then proceeded to the scene of the incident and examined the crashed car. He found a bullet hole in the roof section of the car near the rear window and several bills and receipts inside the car. They bore the name Paul Gonzalez and the address 1040 W. Hollywood, Apartment 507. A temporary Illinois registration permit taped on the front windshield showed the name Paul Gonzalez, and the address, 932 N. Hamlin. The car keys were still in the ignition.

Vucko returned to the police station and again conversed with Luciano and the other officers. He then went to 932 N. Hamlin, arriving at about midnight. A person who identified himself as Gonzalez' father told him that his son was not there. He and three other officers then proceeded to the Hollywood address where Vucko opened the vestibule door of the apartment building with one of the keys recovered from the crashed car. When the officers reached apartment 507, they heard voices inside. With revolver drawn, Vucko knocked on the door and announced his office. A woman opened the door. He asked if anyone else was there, but she gave no response. Vucko then saw someone looking through a partially opened door in the apartment. He ordered the person to come out. Defendant, who was dressed in undershorts and a T-shirt, came out from behind the door and immediately assumed a prone position on the floor.

Vucko searched defendant and asked him where his car was. Defendant replied that it was parked in the rear of the building. Vucko and another officer accompanied defendant to the bedroom so that he could get dressed. In the bedroom, Vucko informed defendant of his Miranda rights. Defendant indicated he understood these rights. At first, defendant stated that he did not know anything about the robbery on Marshfield. Vucko then showed defendant the keys recovered from the green car, and defendant admitted that they were his. Defendant told Vucko that earlier that day Gregory Buenfil phoned him, and he later picked Buenfil up at his house. They drove around and parked on the 1000 block of Marshfield at about 10 p.m. and drank beer. Another car pulled up, and Buenfil crossed the street and "stuck up the guy" who got out of the car. During the robbery, defendant got out of the car, stood for awhile, got back into the car and pulled off. Some shots were fired, the car crashed and they ran. Defendant admitted to Vucko that he wore a nylon scarf over part of his face that day.

Vucko obtained Gregory Buenfil's telephone number from defendant and traced his address to 4924 N. Drake. $140 was recovered from defendant's ...


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