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People v. Kasp

August 20, 2004


[6] Appeal from the Circuit Court of Cook County. No. 02 CR 17945 The Honorable James B. Linn, Judge Presiding.

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

[8]  Following a jury trial, defendant George Kasp (defendant) was convicted of aggravated discharge of a firearm and sentenced to seven years in prison. He appeals, contending that the crime of aggravated discharge of a firearm violates the proportionate penalties clause of our state constitution and that it unconstitutionally proscribes lawful activity. Based on these allegations, defendant seeks the outright reversal of his conviction. Alternatively, he contends that his conviction must be reversed and remanded because reversible error occurred during his trial when the jury was not given an instruction on self-defense. For the following reasons, we affirm.


[10]   Defendant and co-defendants Carlos Lopez and Erick Brito were charged with two counts of attempted first degree murder and two counts of aggravated discharge of a firearm. Lopez and Brito pled guilty to aggravated discharge of a firearm and the attempted first degree murder charges were dropped. Defendant stood trial on all charges before a jury, from which the following evidence was adduced.

[11]   Luis Ruiz testified that at 11:30 p.m. on June 23, 2002, he was driving alone in his dark green Jeep in a Chicago neighborhood when another car, a dark blue Jeep driven by defendant, sideswiped him. Ruiz, who had a gun in his car, stopped to allow defendant to pull alongside him to discuss the incident. When defendant did so, his front-seat passenger, Lopez, pulled out a gun and aimed it at Ruiz. Ruiz passed defendant and drove off, making several turns through the neighborhood streets in an effort to avoid him. Defendant followed Ruiz and continued to do so for several blocks, and then began to ram Ruiz's car from behind. After this occurred multiple times, Ruiz heard gunshots coming from defendant's car and he saw Lopez's arm hanging out of defendant's passenger window holding a gun and aiming it at his car. Ruiz, who was traveling at approximately 40 miles per hour, eventually lost control and hit a parked car. Defendant stopped his car nearby. Ruiz immediately jumped out of his car and started running down an alley. As he ran, he heard some 13 shots fired at him coming from the direction of defendant's car and hitting the garages lining the alley. Ruiz was able to run through the alley and later reach his home without being hurt. In addition to damage sustained when Ruiz hit the parked car, Ruiz's car had bullet holes in its frame, two flat tires, and ram marks on its side and rear bumper, and the back windshield had been shot out.

[12]   Officer Anthony Glaviano testified that he and his partner, who were patrolling the area in their police vehicle, received a report of shots fired. Immediately thereafter, they saw two Jeeps drive by them going in the opposite direction. Officer Glaviano stated that the dark green Jeep driven by Ruiz was in front and the dark blue Jeep driven by defendant was behind, ramming it. Officer Glaviano made a U-turn and followed the cars as they turned down several blocks in the neighborhood; at all times, defendant remained behind Ruiz. Officer Glaviano noticed that defendant had several passengers in his car. While they were driving, Officer Glaviano saw Lopez with his whole body hanging out of the passenger side of defendant's car and firing a gun at Ruiz. Ruiz then lost control of his car, hit a parked car and started to run. Officer Glaviano stated that, at this point, both Lopez and Brito exited defendant's car and began shooting at Ruiz. Lopez then got back into defendant's car and defendant drove off.

[13]   Officer Alfredo Roman testified that he and his partner also responded to the report and pursued defendant after he drove away from the scene of the accident. Officer Roman saw defendant slow down and then drive around a police barricade, whereupon Lopez threw a gun out of the passenger window onto the street. Officer Roman continued to pursue defendant, who drove head-on into a police car, injuring another officer. Defendant then exited his car and began to run. Officer Roman pursued him on foot and arrested him.

[14]   Officer Hutcheson testified that she and her partner were in the vicinity and heard shots fired. They proceeded to an alley and saw Brito standing on the street firing a gun. Officer Hutcheson then assisted other officers in pursuing defendant's car. Once defendant was apprehended, she inspected defendant's car. In addition to damage on the front of the car due to the head-on collision with the police car, she found shell casings inside, bullet holes in the back frame of the car, the rear window shot out and various scrapings. She also found damage to the back bumper.

[15]   Defendant testified on his own behalf. He stated that he was driving his Jeep with his friends Lopez, Brito, Maya Diaz DeLeon and Andres Rivera inside; Lopez was in the front passenger seat, Brito and DeLeon were in the backseat and Rivera sat in the cargo area. Defendant testified that he was making a wide turn when he accidentally sideswiped Ruiz's car. He was about to get out to speak to Ruiz when 15 to 20 men surrounded his car, screaming and hitting his windows. Defendant drove away and Ruiz began to follow him. Defendant averred that when Ruiz caught up to him, Ruiz started ramming his car into defendant's from behind. Lopez turned around in his seat and shot at Ruiz, but Ruiz continued to ram them. Defendant testified that Ruiz rammed them so hard that he pushed defendant into a median and Ruiz careened into a fire hydrant and a parked car. Lopez and Brito jumped out of defendant's car, chasing and shooting at Ruiz as defendant attempted to get his car off the median. While defendant was trying to drive away, Lopez returned and jumped into his moving car. Defendant slowed down when he approached a police roadblock; he testified that Lopez told him to go around it because he still had his gun. Defendant drove around the roadblock, continued driving and eventually hit a police car head-on. He then got out of his car and attempted to run because he was scared and did not want to be arrested. Defendant further testified that he did not have a gun on him or in his car, that he did not know that Lopez had a gun, that he did not tell Lopez or Brito to shoot at Ruiz, and that the bullet holes in the frame of the rear of his car came from Lopez, who had turned around to shoot at Ruiz during the chase.

[16]   Rivera and Diaz DeLeon also testified on defendant's behalf. Rivera testified that he was sitting in the cargo area of defendant's car when defendant made a wide turn and sideswiped Ruiz's car. Defendant stopped, but 15 to 20 men approached his car, so defendant drove away. Rivera stated that Ruiz followed defendant and rammed him several times from behind. Rivera then heard gunshots. He testified that he never saw an arm coming out of Ruiz's car shooting at them, but he did see muzzled flashes coming from both the front of defendant's car and Ruiz's car; Rivera was shot in the foot. Ruiz lost control of his car and crashed. Rivera averred that Lopez and Brito got out of defendant's car, that Lopez began to shoot at Ruiz, and that when Lopez returned to the car, they left the scene. Rivera stated that officers started chasing defendant, who got into an accident. On cross-examination, Rivera testified that he never saw Ruiz or Lopez shoot a gun; he simply heard shots. Rivera also stated that he did not believe defendant's back window was shot out and that he did not see any guns in defendant's car. Diaz DeLeon testified that she was in defendant's car when he sideswiped Ruiz. She stated that when defendant stopped, a group of men approached the car and defendant quickly drove away. She further stated that Ruiz began to follow and ram them. She heard shots and ducked down in the back seat. She did not see what happened thereafter but testified that Ruiz was always behind defendant during the chase.

[17]   During closing argument, the State asserted that under the accountability theory, defendant must be held accountable for the actions of Lopez and Brito in shooting at Ruiz. Defense counsel disputed this, arguing that there was no plan among defendant, Lopez and Brito to shoot at Ruiz, but that this was simply a spontaneous act committed solely by Lopez and Brito and defendant was merely driving his car at the time it occurred. The jury acquitted defendant of attempted first degree murder but found him guilty on the aggravated discharge of a firearm counts. The trial court sentenced him to seven years in prison.


[19]   Defendant makes three contentions on appeal. We address each separately.

[20]   I. Disproportionate Penalties

[21]   Defendant's first contention on appeal is that the crime of aggravated discharge of a firearm, of which he was convicted, violates the proportionate penalties clause of our state constitution vis-a-vis the crime of reckless discharge of a firearm because the latter requires proof beyond a reasonable doubt that a defendant's conduct endangers the victim's bodily safety whereas the former has no requirement of any endangerment to the victim. Defendant insists that under the cross-comparison proportionality review test, the two crimes share a common statutory purpose, yet, due to reckless discharge's "added element" of actual endangerment, aggravated discharge is inherently a less serious offense but incorrectly bears a heavier sentence. Because of this, defendant insists, his conviction must be reversed outright. We disagree.

[22]   A statute is presumed to be constitutional, and, thus, the party challenging it bears the burden of clearly demonstrating its invalidity. See People v. Zapata, 347 Ill. App. 3d 956, 966 (2004); accord People v. Garza, 298 Ill. App. 3d 452, 461 (1998). It is well-settled that the legislature has wide discretion to set penalties for the offenses it defines and such penalties will not be invalidated unless they clearly exceed the very broad constitutional limitations that apply. See Garza, 298 Ill. App. 3d at 461; see also People v. Townsend, 275 Ill. App. 3d 413, 418 (1995). Because the legislature is better able to gauge the seriousness of the different offenses it defines, we, as a reviewing court, will not interfere with its judgment with respect to the penalties it institutes "unless the punishment is cruel, degrading, or so wholly disproportionate to the offense that it shocks the moral sense of the community." Garza, 298 Ill. App. 3d at 461. Rather, we are duty-bound to construe a statute in a manner that upholds its validity and constitutionality if this can reasonably be done. See Zapata, 347 Ill. App. 3d at 966-67; People v. Cosby, 305 Ill. App. 3d 211, 224 (1999) (we must affirm statute's constitutionality and validity whenever possible). This is especially true when the statute's language is certain and unambiguous, thereby indicating the legislature's intent, which must be given effect. See Cosby, 305 Ill. App. 3d at 224 ("language of a statute is the best indication of the legislature's intent"); People v. James, 246 Ill. App. 3d 939, 948 (1993). Where, as here, we are called upon to examine the constitutionality of a statute, we employ a de novo standard of review. See Zapata, 347 Ill. App. 3d at 967.

[23]   As defendant correctly notes, one of the limitations imposed upon our legislature's otherwise broad power to determine penalties for offenses is the constitutional guarantee of proportionate sentences. See Townsend, 275 Ill. App. 3d at 418. That is, the proportionate penalties clause of the Illinois Constitution provides " '[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.' " People v. Washington, 343 Ill. App. 3d 889, 896 (2003), quoting Ill. Const. 1970, art. I, ยง 11; see also Zapata, 347 Ill. App. 3d at 967; People v. Austin, No. 1--03--1984, slip op. at 8 (June 25, 2004). This requires the legislature, in defining crimes and their penalties, to consider the constitutional goal of instituting penalties according to the seriousness of the offense. See People v. ...

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