Appeal from the Circuit Court of Kane County. No. 99-CF-1308 Honorable Donald C. Hudson, Judge, Presiding.
The opinion of the court was delivered by: Justice Callum
The State petitioned to adjudicate defendant, Javier M. Beltran, a delinquent minor. Then, pursuant to section 5--805(2) of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5--805(2) (West 1998)), the State moved to prosecute defendant under the criminal law. The juvenile court granted that motion, and a jury convicted defendant of three counts of attempted first-degree murder (720 ILCS 5/8--4(a), 9--1(a)(1) (West 1998)) and three counts of aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West 1998)). On two of the attempt counts, the trial court sentenced defendant to consecutive prison terms totaling 21 years. On the remaining counts, the court imposed concurrent eight-year sentences. Defendant appeals, arguing that (1) section 5--805(2) of the Act violated his right to due process of law (U.S. Const., amend. XIV); (2) the trial court erred in instructing the jury on accountability; (3) the convictions of aggravated discharge of a firearm violated the one-act, one-crime rule; and (4) the imposition of consecutive sentences violated defendant's due process rights (U.S. Const., amend. XIV; Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)). We affirm in part and vacate in part.
In its petition for adjudication, the State alleged that defendant had committed multiple counts of attempted first-degree murder, a Class X felony (720 ILCS 5/8--4(c)(1) (West 1998)), and aggravated discharge of a firearm. On the date of the alleged offenses, defendant was 15 years old. In its motion to prosecute, the State asserted the existence of probable cause to believe the petition's allegations. See 705 ILCS 405/5--805(2)(a) (West 1998).
At a hearing, the State presented evidence to establish probable cause, and the juvenile court found it sufficient. After the presentation of additional evidence, the court determined that defendant had the burden to rebut the presumption that he should be prosecuted. See 705 ILCS 405/5--805(2)(a) (West 1998). The court considered the statutory factors (705 ILCS 405/5--805(2)(b) (West 1998)) and concluded that the presumption stood. Accordingly, the court granted the State's motion.
A grand jury indicted defendant. At trial, the State presented the following evidence relevant to our analysis. Eloy Cerenil (Eloy) testified that on April 10, 1999, about 8:15 p.m., he was in his driveway with Rolando Cerenil (Rolando) and Arturo Garcia. Eloy heard gunfire, and a bullet hit him. The bullet penetrated his spine and left him paralyzed from the waist down. He did not see who shot him.
Rolando testified that he heard six or seven shots. Defendant was the shooter, and Adam Luna was with him.
Garcia testified that defendant fired five shots and that Luna was at his side, also holding a gun. A bullet grazed Garcia. Defendant and Luna ran off.
After defendant presented evidence of an alibi, the State proffered a jury instruction on accountability (see Illinois Pattern Jury Instructions, Criminal, No. 5.03 (4th ed. 2000)). Defendant objected, arguing that there had been no "indication of accountability." Nevertheless, relying on People v. Testa, 261 Ill. App. 3d 1025 (1994), the trial court found the instruction appropriate because the evidence suggested that two people were "acting together" in the shooting.
In denying his posttrial motion, the court rejected defendant's constitutional attack on section 5--805(2) of the Act. Pursuant to section 5--8--4(a) of the Unified Code of Corrections (the Code) (730 ILCS 5/5--8--4(a) (West 1998)), the court imposed consecutive sentences upon finding that defendant inflicted "severe bodily injury" and committed his offenses "as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective." 730 ILCS 5/5--8--4(a) (West 1998). In denying defendant's motion to reconsider, the court declined to merge the aggravated discharge counts into the attempt counts. Defendant appealed.
II. SECTION 5--805(2) OF THE ACT
Defendant argues that, in two respects, section 5--805(2) violates due process. First, he asserts that the statute runs afoul of Apprendi. Although he did not raise that claim in the trial court, a constitutional challenge may be raised at any time. People v. Vilces, 321 Ill. App. 3d 937, 943 (2001). Second, he contends that the statute shifts to the minor an impermissible burden. The trial court rejected that claim, but our review is de novo. See People v. Carney, 196 Ill. 2d 518, 526 (2001).
In general, when the State petitions for an adjudication of delinquency, the minor is subject only to the sanctions available under the Act. See 705 ILCS 405/5--120 (West 1998). The most serious of those sanctions is the minor's commitment to the juvenile division of the Department of Corrections until his 21st birthday. See 705 ILCS 405/5--750 (West 1998). However, in some circumstances, the State may move the juvenile court to transfer the case to the criminal court, allowing the State to pursue the sanctions available under the criminal law. Depending on the facts, a transfer may be mandatory (705 ILCS 405/5--805(1) (West 1998)), presumptive ...