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March 18, 1994


Appeal from the Circuit Court Cook County. The Honorable Edward Fiala, Judge Presiding. Original Opinion of January 14, 1994,

630 N.E.2d 918 at 924. Egan, McNAMARA, Giannis

The opinion of the court was delivered by: Egan


PRESIDING JUSTICE EGAN delivered the opinion of the court:

In his petition for rehearing the defendant claims that his conviction for armed violence should be reversed because enhancement of his aggravated battery conviction "would not serve the deterrent purpose of the armed violence statute."

In his original brief, the defendant contended that the deterrent purpose of the armed violence statute is not served in this case because the predicate felony (aggravated battery) is based on accountability and there was no evidence that the defendant was armed or knew that the codefendant was armed or would use a weapon. His petition for rehearing repeats that argument. In its original brief, the State responded that, in effect, the defendant asks this court to add an element of concurrent and specific intent to all potential crimes carried out during the course of criminal conduct to support a conviction based on accountability. The State asserted that this type of claim would dramatically undermine the force of the accountability principle in prosecutions for armed violence. We agree.

A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law. (Ill. Rev. Stat. 1989, ch. 38, par. 33A-2.) Our supreme court has excepted two crimes as possible predicate felonies (voluntary and involuntary manslaughter) as the basis for an armed violence conviction because these underlying crimes are spontaneous and lack premeditation. ( People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48, 74 Ill. Dec. 18 (voluntary manslaughter); People v. Fernetti (1984), 104 Ill. 2d 19, 470 N.E.2d 501, 83 Ill. Dec. 375 (involuntary manslaughter).) The defendant suggests that this exception should be extended to this case, i.e., when the defendant's armed violence conviction is based on accountability and he did not specifically intend or foresee the use of a dangerous weapon during the commission of the aggravated battery. The supreme court, however, refused to extend the exception to include aggravated battery because the offense of aggravated battery does not have a mitigating mental state. See People v. Allen (1992), 153 Ill. 2d 145, 606 N.E.2d 1149, 180 Ill. Dec. 72 (only legislature may amend aggravated battery statute to recognize mitigating factors or amend armed violence statute to clarify that it may not be predicated on an offense which is motivated by a mitigating mental state).

The defendant argues that if he is to be punished under the armed violence statute, at a minimum, the evidence should have shown that he carried a weapon or somehow overtly planned the use of a dangerous weapon during the shooting. The defendant claimsthat there was no evidence that he was armed, knew that his codefendant was armed, that he had access to a weapon, or that he intended to facilitate a felony while his codefendant was armed. The defendant, however, cannot escape the extent of the common design rule: a defendant is responsible for unplanned crimes committed during the course of planned criminal conduct. The rule of responsibility for common design applies to armed violence. ( People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746, 77 Ill. Dec. 442). The defendant admitted in his original brief that he and Ruiz "shared a common purpose to harm the complainant." That the aggravated battery conviction was based on accountability does not affect the conviction: an aggravated battery conviction may serve as the predicate for an armed violence conviction. People v. Allen (1992), 153 Ill. 2d 145, 606 N.E.2d 1149, 180 Ill. Dec. 72.

The defendant claims that the common design rule is inapplicable in this case because there was no evidence of his advanced knowledge of the criminal plan or scheme. The defendant relies on People v. Estrada (1993), 243 Ill. App. 3d 177, 611 N.E.2d 1063, 183 Ill. Dec. 415.) That case, however, is distinguishable. The court found defendant Estrada already had exited the car when a fellow passenger fired a gun at the victim and that mere presence in the vicinity could not support a conviction based on accountability for first degree murder.

In Estrada, three Hispanic males were riding around a neighborhood for 1 1/2 to 2 hours. The defendant entered their car; they stopped in front of a building where two Hispanic males were standing. The defendant and another passenger shouted "something about gangs." In his oral statement to a detective, the defendant stated that a passenger "represented" symbols for the Latin Kings, while the individuals on the street flashed Two-Sixer gang signs. The defendant then exited the car with a tire iron in hand. As he exited the car he heard two shots. He chased one of the individuals, broke off the chase, and then broke a first-floor window of the building where one of the individuals entered. The court found that there was no direct evidence tying the defendant to a common design to shoot the victim. This Conclusion was premised on the fact that the defendant already had exited the car when a fellow passenger fired the gun. The court also noted that it was less likely that the defendant would have exited the car to pursue the victim on foot had he known that he might have been shot at. Following the maxim that mere presence without any affirmative act is insufficient for accountability, the court reversed the conviction.

Unlike Estrada, the defendant in this case was not merely present, ignorant of his codefendant's actions. The evidence showed that Dennis Botts (the driver) saw the defendant "disrespecting" the Folknation, as he and Fred passed by a double-parked car and a group of men. After the Botts brothers passed, the codefendants jogged up to their car within a few seconds of each other. The defendant screamed, "They're Royals, they're Royals" and attempted to open the driver's side door. Then, Ruiz shot Fred Botts in the neck and shot at Dennis but the gun misfired. The codefendants were together at the double-parked car, they ran almost together to the victim's car, the defendant identified the Botts brothers as enemy gang members, and in response, the codefendant shot at both Botts brothers.

The supreme court refused to except an aggravated battery conviction as a predicate felony for armed violence in People v. Allen. The defendant's claim that the deterrent purpose of the statute would not be served in his case is merely an attempt to create another exception to the armed violence statute for predicate felonies based on accountability. Our supreme court in Allen noted that only the legislature may amend the armed violence statute.

The petition for rehearing is denied.

McNAMARA, J., and GIANNIS, ...

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