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11/23/94 J.O. v. J.O.

November 23, 1994

IN THE INTEREST OF J.O., A MINOR. THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLANT
v.
J.O., A MINOR, RESPONDENT-APPELLEE



Appeal from the Circuit Court of Cook County. The Honorable Arthur Rosenblum, Judge Presiding.

Justice Egan delivered the opinion of the court: Rakowski, J., and Zwick, J., concur.

The opinion of the court was delivered by: Egan

JUSTICE EGAN delivered the opinion of the court:

The State appeals from an order denying its motion to transfer the respondent, J.O., from juvenile court to criminal court to be tried as an adult for attempted first degree murder and aggravated battery.

At the transfer hearing, evidence of the crime was introduced through the written statement of the co-defendant, Jose Hernandez. This statement revealed that J.O., Jose Hernandez and two other Latin Kings were riding around in a stolen car on September 22, 1992. They planned to cruise around in order to find a "guy in the wheelchair," Maricelino Morales, who had been shot by a fellow gang member. Morales, who was formerly a member of a rival gang and was paralyzed from the waist down, intended to testify against the shooter. Hernandez stated that "they wanted to find the wheelchair guy and beat him so he wouldn't be able to testify against their fellow Latin King."

The group did locate Morales at a gas station on 28th street. Morales was with Dawn Elliot and Ramone Macias, "the guy who pushed him." Two of the Latin Kings jumped out of the car, one with a golf club and the other with a baseball bat. Diablo, one of the Latin Kings, rammed the car into the wheelchair, knocking Morales out onto the street. Two of the Latin Kings beat Morales with the club and bat. As a result of this beating, Morales received serious injuries to both hands with one finger severed at the knuckle and multiple lacerations to the skull that required surgery. The defendant did not participate in this beating of Morales, but chased Morales' companion, a 2-6 gang member, down the street, hitting him with a baseball bat. After the beating, J.O. and the other three Latin Kings left. The car was later burned with the golf club and baseball bats inside.

Hernandez was not arrested until approximately two weeks after the beating when he came to juvenile court to testify for one of his co-offenders and was identified by Morales. A police officer testified that two witnesses identified J.O. in a line-up investigating the beating. Morales' companion, Marcias, told the officer that J.O. exited the car at the time of the beating and chased him and struck him with a baseball bat.

Andrew LeFevour, the assistant State's Attorney who took Jose Hernandez' statement, Officer Eugene Schleder, who investigated the beating of the victim, and conducted the line-up, and Melvin Travis, probation officer for the juvenile division of the Circuit Court of Cook County testified. The trial Judge, after considering the statutory factors for transfer, held that J.O. should stay in the juvenile system, thus denying the State's motion to transfer J.O. to the adult criminal system.

"The role of the appellate court in determining the propriety of a juvenile transfer to criminal court is whether in light of the statutory criteria, the trial Judge abused his discretion." (People v. Thomas (1981), 94 Ill. App. 3d 895, 902, 419 N.E.2d 480, 486, 50 Ill. Dec. 372.) Our review of the record indicates that the trial Judge did consider these factors. However, "not all of the factors set forth in the transfer statute need be resolved against the juvenile to justify transfer." (People v. Kraman (1981), 96 Ill. App. 3d 390, 404, 421 N.E.2d 346, 357, 51 Ill. Dec. 838.) We hold that the trial Judge abused his discretion by denying the motion to transfer.

In making its determination whether to transfer prosecution from the juvenile court to prosecution under the criminal laws, the court is to consider six factors. These factors are:

(1) Whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority; and (7) whether the minor possessed a deadly weapon when committing the alleged offense.

Ill. Rev. Stat. 1991, ch. 37, P 805-4(3)(b); 705 ILCS 405/5-4(3)(b) (West 1993).

First, the Judge ruled that a grand jury would absolutely indict J.O. We agree that an indictment for at least aggravated battery is more than likely. Second, the trial Judge ruled that the beating was "absolutely" committed in an aggressive and premeditated manner. We again agree. The record indicates that J.O. and his fellow gang members cruised around until they found Morales in his wheelchair with the intention of beating him with a golf club and baseball bats. Third, J.O. was almost seventeen years old. Had the victim died of the beating, J.O. could have been charged with first degree murder, which by statute would automatically send him to the adult criminal system. See Ill. Rev. Stat. 1991, ch. 37, P 805-4(6)(a); 705 ILCS 405/5-4(6)(a) (West 1993).

Fourth, J.O. had a previous history of trouble with the police. The Judge, although not finding J.O. delinquent, noted that J.O. had three pending petitions in juvenile court. J.O.'s previous police and court contacts include 20 station adjustments and 8 court referrals. Eight prior station adjustments and probation for burglary were enough in People v. M.D. (1984), 101 Ill. 2d 73, 86, 461 N.E.2d 367, 374, 77 Ill. Dec. 744, to convince the court that "the respondent is very familiar with the criminal Justice system." "Station adjustments have ...


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