Appeal from the Circuit Court of , Kane County. No. 07-CF-1778 Honorable Philip L. DiMarzio, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Jorgensen
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Bowman and Burke concurred in the judgment and opinion.
Following a bench trial, defendant, Guillermo S. Guerrero, was found guilty of five counts of criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2006)) and two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2006)). He was sentenced to 22 years' imprisonment. The court subsequently modified the sentence to 19 years' imprisonment and denied defendant's posttrial motions. Defendant appeals, arguing that: (1) his trial counsel was ineffective where counsel erroneously informed him that he was eligible for probation and failed to correctly advise him that imprisonment was mandatory upon conviction; (2) he was deprived of due process where the trial court erroneously informed him at arraignment that he was eligible for probation; (3) the evidence was insufficient to sustain his convictions of criminal sexual assault and criminal sexual abuse; and (4) alternatively, the evidence concerning a sexual penetration by a cotton swab was insufficient to sustain defendant's conviction on that count (count V) of criminal sexual assault. For the following reasons, we affirm in part, reverse in part, and modify defendant's sentence to 15 years' imprisonment.
On June 29, 2007, a grand jury returned a seven-count indictment, charging defendant with five counts of criminal sexual assault, a Class 1 felony (720 ILCS 5/12-13(b)(1) (West 2006)). In counts I and II, the indictment alleged that, between October 1 and October 31, 2006, defendant committed an act of sexual penetration with I.G., his daughter (who was under age 18), by putting his finger into her sex organ. Counts III and IV alleged that defendant put his penis into I.G.'s sex organ, and count V alleged that he put an object, i.e., a cotton swab, into I.G.'s sex organ. The indictment also charged defendant with two counts of criminal sexual abuse, a Class 2 felony (720 ILCS 5/12-16(g) (West 2006)). Specifically, counts VI and VII alleged that defendant knowingly touched I.G.'s sex organ with his hand for the purpose of sexual arousal or gratification, where I.G. was at least age 13 and under age 17; additionally, count VI alleged that defendant was at least five years older than I.G.
Judge Philip L. DiMarzio arraigned defendant on August 2, 2007.*fn1 Eduardo Gil appeared as defendant's counsel. As to the Class 1 felonies, the court informed defendant that the sentencing range was 4 to 15 years' imprisonment, in addition to a period of mandatory supervised release (2 years to life). The court also noted the possibility of a fine of up to $25,000 and that, "You could be placed on probation for up to 48 months." (In fact, probation is not an authorized disposition for a criminal sexual assault conviction; rather, a term of imprisonment is mandatory. 730 ILCS 5/5-5-3(c)(2)(H) (West 2006).) As to the Class 2 felonies, the court noted that the sentencing range was three to seven years' imprisonment, in addition to two years of mandatory supervised release and the possibility of a fine of up to $25,000. The court also noted that the sentences would run consecutively. Defendant pleaded not guilty, and the matter was continued for discovery.
At a status hearing on October 24, 2007, before Judge Grant Wegner, Gil informed the court that he had received discovery and that "we're making an application for a sex offender evaluation." The matter was continued for, inter alia, return of the evaluation.*fn2
At a hearing on December 19, 2007, before Judge DiMarzio, John Carroll appeared as additional counsel for defendant. Gil was not present. Upon Carroll's request, the court set a trial date.*fn3
On March 17, 2008, defendant appeared before Judge DiMarzio with attorney Carroll, who informed the court that defendant would waive his right to a jury so long as Judge DiMarzio would hear the case that morning. DiMarzio informed the parties that he could hear the bench trial that day, but would not be available for sentencing if defendant were convicted. Defendant was admonished only as to his right to a jury trial and waived a jury.*fn4
The State first called I.G., age 15. I.G. currently resided in New Jersey with her biological mother, Caridad Matamoros, whom she met for the first time since infancy when she was 14 years old. She had lived with her mother for the past year or two. Defendant and Matamoros divorced when I.G. was an infant. I.G. lived in Mexico with her aunt, Marcella Guerrero (defendant's sister), and her grandmother, Irene Guerrero, until age seven. Defendant visited I.G. in Mexico two or three times per year. When I.G. turned seven, defendant told her that he wanted her to live with him and his current wife, Melesia Guerrero, and their two children. I.G. moved to Aurora and lived with defendant and Melesia and their son (age eight) and daughter (nine) for four or five years.
In March 2006, when I.G. was 14, defendant took I.G. to live with her mother because I.G. and defendant did not get along. I.G. resided with her mother for six or seven months. She did not get along with her mother because she had not been raised by her. When Matamoros called defendant to tell him about the situation, I.G. told her that she should just send her back to live with him. In October 2006, I.G. moved back to Aurora to live with defendant and his family.
When I.G. arrived in Aurora, defendant was on a road trip, working on a flooring job. When he arrived home, he was upset because Matamoros had told him something "delicate"; specifically, defendant was upset because I.G. had a relationship with a man in New Jersey. "He was pretty mad, about it. He spoke to me, he told me that he couldn't believe it. That he was going to send me, you know, to get myself checked out. Because he wanted to see if I had no, no [sic] infections or nothing [sic] like that."
According to I.G., she was in the dining room with defendant. He then called her to come upstairs to his bedroom. Her siblings were in the living room, watching television. Melesia, I.G.'s stepmother, was at work. In the bedroom, defendant told I.G. that he wanted to check her and instructed her to remove her pants and underwear. His tone was "normal or kind of upset." I.G. told him that she was embarrassed and did not want to remove her clothes. Defendant repeated that he wanted to "check something," and I.G. complied because she did not want defendant to become aggressive. She pulled her clothing down to her knees.
Defendant pushed I.G. down on the bed and spread open her legs. He began to "check" her by touching I.G.'s vagina with his finger. He complained that I.G. was not "getting wet," and I.G. stated that she wanted to go downstairs to complete making breakfast. Defendant objected, stating that he wanted to finish. He continued touching I.G. and stated that it was "impossible, I don't know why you're not getting wet" and that he gets "wet" when he sees "something like this." Defendant then twice inserted his finger into I.G.'s vagina. After this, defendant "showed me how, how easy, you see, like [sic] I'm getting wet. He took out his penis and he like penetrated me." I.G. was able to see defendant's penis after defendant pulled down his jeans and boxer shorts. However, she was unable to describe it. Defendant showed I.G. that his penis was erect and wet and stated that he wanted to try something. At this point, I.G. "tried to stop it," but defendant penetrated I.G.'s vagina with his penis. Defendant then ejaculated on I.G.'s pubic hair.
Next, defendant picked up a Q-tip. I.G. could not recall from where defendant retrieved it. "He said he wanted to see what contact I had with the sperm, he got some liquid for [sic] me and then sperm of [sic] him, and he said he was going to take it to the laboratory to analyze it."As to the vaginal liquid, I.G. initially testified that defendant swabbed it from "my" vagina and later clarified that he swabbed it from "around" her vagina. As to the sperm, I.G. initially testified that defendant swabbed sperm from "inside" her vagina, but later testified that the sperm was on top of her. Defendant told I.G. that he was going to send the Q-tip to a laboratory to check how her body reacted to the sperm. He then instructed I.G. to take a shower "really good [sic], and to wash myself good [sic]." I.G. showered, finished serving breakfast to defendant and her siblings, and went to her bedroom because she felt "really dirty" and upset. That evening, Melesia returned from work. I.G. did not tell Melesia about the assault. Defendant never again mentioned the incident and never told
I.G. not to tell anyone about what happened.
I.G. stayed at defendant's residence for two weeks. Defendant was "acting normal." On Halloween, I.G. skipped school, which was a half-day session. It was late, and she had a friend call defendant, who was "pretty mad." Defendant stated that the police were looking for I.G. (I.G. did not believe this) and that, when I.G. returned home, they would have a "serious talk." I.G. was scared and stayed at a friend's house. She told her friend and her friend's mother about the assault.
I.G. stayed with her friend for two days and then went to her aunt Marcella's house in Aurora. (Marcella had moved to Aurora from Mexico.) I.G. explained that she did not immediately report the incident because she was scared of being hurt again and was waiting for the right moment.
On cross-examination, I.G. testified that, when she first lived in defendant's residence after moving from Mexico, defendant's wife, Melesia, was nice to her. However, once I.G. began having problems at school (e.g., she skipped school), there was tension in the home. When asked if she loved her stepmother, I.G. replied "Not really" and "I can't say much." She did not know if Melesia loved her. During the tense period, I.G. never went to live with Marcella. Defendant and Melesia provided I.G. a place to live, food, and clothing. Prior to the October 2006 assault, defendant had never sexually assaulted her. However, he did slap I.G. as punishment.
Due to the dynamics in defendant's home, I.G. moved to New Jersey to live with her mother. In New Jersey, I.G. began to have problems with her mother. Her mother did not want I.G. to have as friends a particular group her mother suspected was a gang. Also, I.G. had a sexual relationship with a man that lasted three or four months. I.G. denied that she had several relationships. I.G.'s mother called defendant to tell him that he had to take back I.G.
Addressing the assault, I.G. testified that, when defendant arrived home, she opened the door for him because he did not have his keys. Defendant told I.G. that he "needed to talk to me seriously." I.G. had been back home from New Jersey one or two days. Defendant spoke to her in the living room, and I.G. asked if she had done something "bad." After I.G. took a shower, she went downstairs to the kitchen and finished serving breakfast to defendant and her siblings. She had been gone from the kitchen for about 30 minutes. After breakfast, defendant watched television in the living room.
I.G. further testified that she had attended sex education classes and was aware how a woman becomes pregnant and of the possibility of infection from sexual partners. I.G. did not believe that she was pregnant, because, she explained, defendant did not ejaculate inside of her. I.G. was aware that one can call 911 in case of emergency. I.G. never called 911 or the school nurse to report the incident with defendant. The incident occurred on a Saturday. On Monday, I.G. went to school. She had an English teacher whom she liked and with whom she had a good relationship. However, I.G. did not tell her teacher about the assault.
About one week after the incident, I.G. had skipped a half-day of school on Halloween and learned that defendant was coming to pick her up and would be angry if she was not at school. I.G. had skipped school before and knew that defendant became angry when she did so. Her friend, Luce, called defendant. Luce told I.G. that defendant was mad and had called the police to report I.G. missing. I.G. went to another friend's house. I.G. told Luce about the assault. I.G. then stayed at Luce's house with Luce and her mother and spoke to them about the incident. There, she also spoke to a counselor. Two days later, I.G. went to Marcella's house and told her aunt about the assault. She knew that her aunt would not be mad at her.
On redirect examination, I.G. testified that it was defendant's idea that I.G. go to New Jersey to live with her mother. I.G. did not tell Melesia about the assault, because she would not believe it; I.G. did not get along with her stepmother. She did not tell her English teacher, because she was not ready to speak up and needed more time. I.G. never contacted the police; they came to her aunt's house.
According to I.G., defendant would not slap her, but hit her with different objects that left marks. About one year before the assault, a police report stated that I.G. had a bruise on her face that was caused by defendant when he slapped her.
After I.G. stayed with Luce for a few days, she went to live with Marcella. She stayed for six to eight months and then left because her aunt had young children, and I.G. did not want them involved in her problems. I.G. had contact with her aunt for a few months after, but stopped seeing her because defendant became angry about it. I.G. went to live with her mother.
On re-cross-examination, I.G. testified that, on the day of the incident, after Melesia came home, I.G. did not tell Melesia about the assault and did not ask her to go upstairs and look at the Q-tip. I.G. conceded that she left Marcella's house, Matamoros's house, and defendant's house because she had problems with the people living at each house.
Marcella Guerrero, age 35 and defendant's sister, testified through an interpreter as follows. Marcella moved with her family to Aurora from Mexico about seven years ago (about one year after
I.G. moved there to live with defendant). I.G. lived with Marcella in Mexico from the time I.G. was nine months old to age eight. After she first moved to Aurora, Marcella would see I.G. every week. As time passed, she would see her less often because defendant would not let her see I.G. Marcella loves I.G. and wants only the best for her. About 11/2 years ago (i.e., late 2006), Marcella was at defendant's house. Also present were I.G., defendant, and Melesia (defendant's wife). Marcella observed defendant hit I.G. in the face. He stated that I.G. "was a nobody, that she was a, a bitch, or why did she have pictures of men." This was the only time Marcella observed defendant hit I.G. She did, though, observe bruises on I.G.'s arm when I.G. was 12 or 13 years old. During the incident when defendant slapped I.G., Marcella had been invited to defendant's home by Melesia, who was afraid that defendant was going to be mad about the photograph and hit I.G.
Juan DeJesus, a child abuse investigator at the Department of Children and Family Services (DCFS) child advocacy center, testified that, in November 2006, he investigated a case involving a victim named I.G. He explained that, when a new report comes in, it is assigned a sequential letter. When investigating a case, DeJesus reviews prior sequenced reports. In I.G.'s case, there was a prior incident reported on October 18, 2005, as an allegation of physical abuse; a different investigator investigated the report. Defendant had slapped I.G. in the face, and she had a mark on her cheek. The report was "indicated," meaning that, in the investigator's opinion, there was substantial evidence to support the allegation. I.G. was not removed from the home, and no charges were brought against defendant.
The State rested. The trial court denied defendant's motion for a directed finding. Melesia Guerrero, defendant's wife, testified on defendant's behalf through an interpreter that she had been married to defendant for 12 years. Ever since I.G. arrived to live in their home, she was problematic. Melesia knew she had to accept I.G. as defendant's daughter and guide her on a good path. I.G. was in counseling for 11/2 years. She could not relate well to the younger children in the home. I.G. did not respect defendant's rules. She had problems in grammar school. Once, I.G. threw a Vaseline bottle, trying to hit a teacher. When I.G. moved to New Jersey, there was less tension in the house.
Melesia had never observed defendant do anything sexually inappropriate with I.G. However, she had observed defendant spank and slap I.G. Addressing the timing of the alleged assault, Melesia testified that she worked six days a week at the time and had Sundays off from work. The incident allegedly occurred at 9 a.m. on a Saturday. However, Melesia worked from 4 to 8 p.m. on Saturdays.
According to Melesia, I.G. lied and would say things to her aunts that were untrue "to have us be [sic] one against the other so that we would be fighting between us [sic]." Marcella would try to visit I.G. "just to give her bad advices [sic] only. And to always pit her against [defendant]." Melesia and defendant decided to stop letting I.G. see Marcella.
Due to the problems they were having, Melesia put I.G. in counseling at Mutual Ground in Aurora. Also, she asked Marcella for help, but Marcella accused Melesia of not loving I.G. Melesia stated that she loved I.G. like a daughter.
Defendant testified through an interpreter as follows. He denied that he inserted his finger or penis into I.G.'s vagina. He also denied taking a Q-tip and playing doctor with I.G.
Defendant testified that I.G. had problems in defendant's home and at school. When I.G. went to live in New Jersey, the situation in defendant's home improved. I.G. called and asked to come back because she was out on the street. Her mother had thrown her out of the house because she found her in ...