The opinion of the court was delivered by: Justice Bowman
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT
Appeal from the Circuit Court of Kane County
Honorable Barry E. Puklin, Judge, Presiding.
On July 9, 1996, defendant, Jesus Garza, was arrested in connection with the beating and armed robbery of Antonio Martinez. After a bench trial, the trial court convicted defendant of armed violence, armed robbery, aggravated battery, unlawful possession of a weapon by a felon, possession of a firearm without a firearm owner's identification (FOID) card, and mob action. On appeal, defendant raises the following contentions: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) his sentences for armed violence and possession of a firearm without a FOID card violate the proportionate penalties clause of the Illinois Constitution; and (3) his armed violence conviction is invalid because it was the product of impermissible double enhancement.
At trial, Antonio Martinez testified that, around 3:45 p.m. on July 9, 1996, he drove to the Union 76 gas station at the corner of Dundee and Franklin in Elgin in order to make a call at the pay phone there. As he was talking on the phone to his friend Delores Espinoza, he observed a gray car drive past the gas station. He recognized the three individuals in the car. Defendant's brother Christian Garza (Christian), also known as "Rambo," was driving the car. Defendant, also known as "Chewy," was sitting in the front passenger seat, and Jose Arizmendi, also known as "Curious," was sitting in the back seat. Martinez knew defendant and Christian because they were members of the Latin Kings and, until a few years before trial, Martinez had been a member of the Maniac Latin Disciples, a rival gang. In addition, he had previously called the Garza brothers' house to speak to their 15-year-old sister.
As they drove by Martinez, the three occupants of the car shouted names at him, such as "pussy" and "bitch." Martinez did not respond. Thirty seconds to a minute later, he observed the car driving back toward the gas station from the opposite direction. It stopped next to the station in the middle of Franklin Street.
Defendant then exited the car from the front passenger seat and began walking toward Martinez. As he approached Martinez, defendant pulled a five-inch-long pistol from his clothing. He cocked and pointed the pistol at Martinez and said, "[W]hat's up now, bitch." Martinez said nothing in response but dropped the phone and put his hands up. Although he did not make any movement toward defendant, defendant hit him on the head with the pistol, knocking him to the ground.
After Martinez fell to the ground, Arizmendi and Christian exited the car. They and defendant proceeded to punch and kick Martinez. Martinez could not tell if defendant was hitting him with the gun during this time, but at some point defendant dropped the gun. Martinez attempted to retrieve it, but Arizmendi immediately grabbed it. While Martinez was on the ground, one of his three attackers tore the gold chain and medallion Martinez was wearing from his neck. Defendant, Christian, and Arizmendi then ran to their car and drove away.
After firemen treated Martinez for his injuries, he accompanied police officer Chad Van Mastrigt to the Elgin police station. At the station, he was shown three photographic lineups. In the first lineup he identified Christian as one of his attackers; in the second he identified Arizmendi, and he selected a photograph of defendant from the third lineup.
Martinez denied that Espinoza visited his house on the day of the beating. Although he testified that she came to his house a few days later, he denied talking to her about the beating. Martinez also admitted that he is a convicted felon.
Delores Espinoza testified that, during the afternoon of July 9, 1996, Martinez called her from a pay phone. She knew Martinez because he was a Maniac Latin Disciple in July 1996, and her brothers were in the same gang. She denied being a member or associate of a gang.
While Espinoza was talking to Martinez on the phone, in addition to his voice, she heard "a lot of people yelling" and saying things to provoke Martinez. She recognized one of the voices as "Chewy's." She heard "Chewy" call Martinez a "bitch" and ask him if he wanted to fight. In response, Martinez yelled, "pussy-ass Kings" and "bitch."
Later that day, Espinoza gave a taped statement to police. She told police that the voice she recognized during the phone call belonged to "Chewy." Although she testified at trial that in July 1996 she thought that "Chewy" was Jose Arizmendi's nickname, she admitted telling police that "Chewy" was defendant. Also, after testifying that she had known defendant only for about a year, she admitted telling police in 1996 that she had known him for three or four years.
Espinoza further testified that, after leaving the police station on July 9, she visited Martinez's house. Martinez showed her his gold chain and medallion and stated, "[Y]ou thinking I'm gonna let those motherf------ take my chain." He also told her that his attackers did not have a gun. Espinoza testified that she subsequently told "Officer Schultz" what Martinez had said, and he told her that she could just change her statement when she testified.
Espinoza acknowledged that she had been adjudicated a delinquent minor and, shortly after July 9, 1996, had spent time in a youth home. She admitted that she saw Jose Arizmendi at the youth home, but stated that they were prevented from talking because Espinoza had been subpoenaed to testify in connection with defendant's trial.
Elgin police officer Chad Van Mastrigt testified that on July 9, 1996, he was dispatched to the Union 76 station. The station, which included a convenience mart, was open to the public, had places for parking, gas pumps, and two public pay phones. When Mastrigt arrived at the station, Martinez was being treated for head wounds by the fire department. Mastrigt spoke to Martinez about the beating but did not find any weapon in the area and was unable to find any witnesses to the events Martinez described. Mastrigt then accompanied Martinez to the police ...