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People v. Perea

March 02, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JUAN PEREA AND GEORGE GALARZA, DEFENDANTS-APPELLANTS.



[6] Appeal from the Circuit Court of Cook County. No. 00 CR 15473 The Honorable Clayton J. Crane, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Garcia

[8]  In October 1999, the defendants, Juan Perea and George Galarza, and a third offender, Lee Jimenez, who acted with the defendants but is not a party to this appeal, were charged in juvenile court with attempted first degree murder and aggravated battery for attacking Samuel Avalos. In June 2000, on the State's motion, the defendants were transferred from the juvenile court system into the criminal court system pursuant to the presumptive transfer statute (Presumptive Transfer Statute) (705 ILCS 405/5-805(2)(a) (West Supp. 1999) (added by the Juvenile Justice Reform Provisions of 1998 (Pub. Act 90-590, eff. January 1, 1999)) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-2 et seq. (West 1998)). A grand jury then returned an indictment charging the defendants with (1) attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 1998)); (2) armed robbery (720 ILCS 5/18-2(a) (West 1998)); (3) armed violence (720 ILCS 5/33A-2 (West 1998)); and (4) aggravated battery (720 ILCS 5/12-4(b)(1), (b)(8) (West 1998)).

[9]  In January 2002, the trial court found the defendants guilty of armed robbery (720 ILCS 5/18-2(a) (West 1998)) and aggravated battery (720 ILCS 5/12-4(b)(1), (b)(8) (West 1998)). Following their convictions, the defendants filed posttrial motions with the trial court seeking a new trial and requesting that the trial court exercise its discretion and send the defendants to the juvenile court for sentencing. The trial court denied both motions and sentenced the defendants under the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/1-1 et seq. (West 1998)).

[10]   The defendants appeal arguing (1) the Presumptive Transfer Statute is ambiguous regarding how to sentence juveniles transferred for one offense but convicted of another and, therefore, the trial court abused its discretion in sentencing the defendants as adults instead of as juveniles; (2) the Presumptive Transfer Statute violates the due process and equal protection clauses of the United State and Illinois Constitutions because there is no provision made for juveniles who are acquitted of the offense for which they were transferred; (3) the Presumptive Transfer Statute is unconstitutionally vague and denies juveniles due process because it fails to provide guidance to trial courts sentencing juveniles acquitted of the offense triggering the Presumptive Transfer Statute; (4) the Presumptive Transfer Statute violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because the defendants were exposed to enhanced sentences despite the fact those sentence enhancing factors were not proven beyond a reasonable doubt; and (5) the defendants were wrongly convicted of armed robbery because property was stolen from Avalos before he was struck with a weapon.

[11]   BACKGROUND

[12]   Around 9 p.m. on the evening September 29, 1999, Avalos was walking home when he was attacked by the defendants. At the time of the attack, Perea was 15 years old and Galarza was 16 years old.

[13]   In October 1999, the defendants were initially charged in juvenile court with attempted first degree murder and aggravated battery. However, the State petitioned the juvenile court to permit prosecution of the defendants in the criminal court system pursuant to the Presumptive Transfer Statute in the Juvenile Court Act (705 ILCS 405/ 5-805(2)(a) (West Supp. 1999)) and based on the attempted first degree murder charge facing the defendants. The juvenile court granted the State's motion to transfer and in June 2000, a grand jury returned an indictment charging the defendants under the Criminal Code with (1) attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 1998)); (2) armed robbery (720 ILCS 5/18-2(a) (West 1998)); (3) armed violence (720 ILCS 5/33A-2 (West 1998)); and (4) aggravated battery (720 ILCS 5/ 12-4(b)(1), (b)(8) (West 1998)). All charges arose from the attack on Avalos.

[14]   In October 2001, the defendants filed motions for severance which were granted by the trial court. The defendants waived a jury trial. In December 2001, a bench trial was held.

[15]   Avalos testified that on September 29, 1999, he was walking home through the 2600 block of South Ridgeway Avenue in Chicago, Illinois. Avalos remembers seeing some people across the street and then he woke up in the hospital. Avalos testified he was hospitalized for five months after the attack and had to undergo multiple surgeries on his brain, throat, and abdomen. Although Avalos has had rehabilitative therapy, he cannot walk normally, his speech is slurred, and he needs glasses.

[16]   George Avila testified that at the time of the attack he lived in the 2600 block of South Ridgeway Avenue and was at home with his family on the evening of September 29, 1999. Avila heard screams coming from the front of his home. Avila ran outside and saw four people hitting and kicking a man. Avila called to his mother to notify the police. Avila testified he did not recognize the victim but had seen the attackers before; however, at trial Avila could not identify the attackers.

[17]   At trial Avila was confronted with a handwritten statement dated from early October 1999, in which he identified Galarza as "G-dog" and Perea as "Little Ghost." In his October 1999 statement, Avila stated he saw Galarza and Perea beating up the victim, witnessed Galarza take off the victim's sweater and shoes, and watched as Galarza, after initially walking away, came back to kick the victim in the face. Avila also saw Jimenez throw a concrete block at the victim's head. When shown a photo of the lineup he viewed in October 1999, Avila identified Jimenez as the man who threw the rock and Galarza as the man who removed the victim's shoes and sweater.

[18]   Avila's neighbor, Gladys Naranjo, testified she and her boyfriend were in her family's backyard on September 29, 1999. Gladys testified she heard a bottle break and screaming. Gladys's mother and brother came out of the house to investigate the cause of the noise. Gladys, her mother, and her brother found a man lying on the ground between their home and the next-door neighbor's home; the man had been beaten and was unconscious. Gladys did not recognize the beaten man; however, she identified Galarza as "G-dog" and testified that Galarza approached the victim and kicked him in the face. In early October 1999, Gladys viewed a lineup at the police station and identified Galarza.

[19]   Hector Naranjo, Gladys's brother, testified he was in the living room of his home when he heard yelling and a bottle breaking. Hector saw three people beating up a man, he saw the man fall, and he saw one of the attackers drop a rock on the man's head. Hector specifically testified Galarza and Perea were present when the other attacker dropped a concrete block on the victim's head. Hector recognized the attackers and had seen them often in the neighborhood. Hector identified two of the attackers: Perea, whom he knew as "Little Ghost," and Galarza, whom he knew as "G-dog." Hector specifically testified he saw Galarza holding Avalos while Perea beat him.

[20]   Dr. Hernando Torres, chief of neurosurgery at Mt. Sinai Hospital, testified he treated Avalos on September 29, 1999, when he was admitted to the hospital in an unconscious state and bleeding from the back of his head. Dr. Torres performed a craniotomy on Avalos in order to relieve the swelling caused by the injuries he had sustained. Three weeks later Avalos was transferred for rehabilitation.

[21]   Mike Miller, a detective with the Chicago police department, testified he was assigned to investigate Avalos's beating. Miller testified he was unable to interview Avalos so he went to the scene and found fresh blood, a large piece of concrete, and broken beer bottles. In late September 1999, Miller received information from witnesses regarding the nicknames of two of the three offenders and that the offenders were members of the Ridgeway Boys street gang. Miller brought the three defendants to the police station and placed them in a lineup with three additional participants. Four witnesses viewed the lineup and the three defendants were arrested.

[22]   Detective Donald Flaherty testified he assisted in conducting a six-man lineup. Flaherty stood with the witnesses who viewed the lineup. Gladys Naranjo identified Galarza. Avila identified all three defendants. There were two other witnesses to the lineup as well; three of the four witnesses identified Perea and all four identified Galarza.

[23]   James Snaidauf, a forensic scientist with the Illinois State Police, testified he examined a broken beer bottle recovered from the scene and that the print impressions left on the bottle matched those of Perea.

[24]   Assistant State's Attorney George Canellis testified he spoke with Galarza on October 2, 1999. Canellis testified Galarza made a videotaped confession. The videotape was introduced as evidence only in Galarza's trial. In Galarza's videotaped statement he admits to walking with Jimenez and Perea and noticing Avalos walking through the neighborhood. Galarza, Jimenez, and Perea suspected Avalos was in a rival gang and began chasing him. When Galarza, Jimenez, and Perea caught up with Avalos, Galarza hit him in the face. Galarza, Jimenez, and Perea hit Avalos numerous times before he fell down. Galaros admitted that once Avalos was down he, Jimenez, and Perea began kicking him. Later, Jimenez grabbed a concrete block with both hands and dropped it on Avalos's face from shoulder height. Galarza admitted it sounded as though Avalos was choking on his own blood so Galarza kicked him again and then went home.

[25]   The trial court determined Jimenez was guilty of attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 1998)) and armed violence (720 ILCS 5/33A-2 (West 1998)) based on his action of throwing the concrete block at Avalos's head. However, the trial court concluded Galarza and Perea were not accountable for Jimenez's actions and, therefore, not guilty of either attempted first degree murder or armed violence. Nevertheless, the trial court did find Galarza and Perea guilty of armed robbery (720 ILCS 5/18-2(a) (West 1998)) and aggravated battery (720 ILCS 5/12-4(b)(1), (b)(8) (West 1998)).

[26]   In mid-January 2002, the defendants appeared before the trial court on a posttrial motion seeking a new trial. The defendants argued against the finding of armed robbery (720 ILCS 5/18-2(a) (West 1998)), based on testimony that (1) Avalos was unconscious and (2) the concrete block had been thrown after Avalos's shoes and sweater were taken. Therefore, the defendants argued, their actions were more akin to robbery (720 ILCS 5/18-1(a) (West 1998)). The trial court found the facts of this case conducive to a finding of armed robbery because, "even though the victim was incapacitated at such times as those items were removed, I find the acts [of dropping the concrete block on Avalos's head and taking Avalos's sweater and shoes were] contemporaneous." The trial court then denied the defendants' motion for a new trial.

[27]   A hearing on the defendants' motion to remove the case to juvenile court for resentencing was then rescheduled until late January 2002. At that time, the defendants argued that because they were not convicted of the offense for which they were presumptively transferred from the juvenile court (i.e., attempted first degree murder), the trial court should invoke its discretion and return the defendants to the juvenile court system for sentencing. The State argued the trial court had no discretion regarding the sentencing of the defendants as adults. In the alternative, the State argued that even if the trial court believed it had discretion, it should not exercise it and instead sentence the defendants as adults based on the brutal nature of their acts.

[28]   The trial court cited to People v. Brown, 301 Ill. App. 3d 995, 705 N.E.2d 162 (1998), and determined it did have discretion to send the defendants to the juvenile court for sentencing. However, the trial court found it within its discretion to sentence the defendants as adults based on the fact they were found guilty beyond a reasonable doubt of armed robbery (720 ILCS 5/18-2(a) (West 1998)), a Class ...


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