Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County, Juvenile Justice Division. No. 07 JD 946, The Honorable Richard F. Walsh, Judge Presiding.
Presiding Justice Howse and Justice Lavin concurred in the judgment and opinion.
FITZGERALD SMITH, JUSTICE
¶ 1 Respondent Vincent K., a juvenile currently confined in the Juvenile Department of Corrections, was adjudicated delinquent based on a petition alleging he committed first degree murder. The case was designated for extended juvenile jurisdiction (EJJ). Respondent appeals from an order of the circuit court granting the State's motion to strike his postconviction petition based on the claim that the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2010)) does not apply to juveniles in proceedings under the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-2 et seq. (West 2010)).  For the following reasons, we affirm.
¶ 2 I. BACKGROUND
¶ 3 On February 22, 2007, when respondent was a 13-year-old eighth-grader, he was involved in an altercation which culminated with him stabbing a fellow eighth grade student. The victim, Ricky Hernandez, died of his injuries nine days later. The State filed an amended petition for adjudication of wardship, charging respondent with delinquency based on his commission of first degree murder. After a hearing, the circuit court granted the State's motion to designate the case as an extended jurisdiction juvenile prosecution pursuant to section 5-810 of the Juvenile Court Act of 1987 (705 ILCS 405/5-810 (West 2010)).
¶ 4 A. The Adjudication Proceeding
¶ 5 In the EJJ proceeding, testimony established that February 22, 2007, was respondent's second day as an eighth-grade student at Heritage Middle School (Heritage), to which respondent had transferred from a special education school in Du Page County. Because respondent was new to Heritage, a teacher introduced him to another eighth grade student, Yazmin Renteria. Renteria helped respondent with his locker and then went to her classes.
¶ 6 Renteria testified that at lunch, she saw respondent and the victim swearing at one another and having an "angry" discussion. Renteria stated that respondent and the victim yelled at one another for two to three minutes before going their separate ways.
¶ 7 Renteria further testified that, before eighth period, she went to her locker and saw respondent and the victim swearing at one another again. Renteria and two other students intervened to prevent the argument from becoming physical. Respondent and the victim agreed to meet after school for a fight. The victim went to class and respondent went to his locker, where Renteria overheard him saying that the victim "has something coming for him." Later that day, the victim told Renteria that he was going to walk home with his girlfriend, Gesele, and that he was not going to fight respondent unless respondent approached him first.
¶ 8 After school, Renteria walked outside with respondent and another student, Francisco Temblador. As they were walking, another student, Josh Lopez, approached respondent and told him that, if he wanted to fight, he should approach the victim. Renteria testified that respondent hesitated, then decided to "get it over with" and walked toward the victim's location. As they walked, Renteria saw Temblador hand respondent a blue object. Renteria testified that another person who was with them told her the object was a blue ink pen.
¶ 9 Renteria saw the victim standing near an alley behind a church. Respondent challenged the victim to fight. The victim walked over, threw the first punch, and hit respondent three times in the fact. Meanwhile, 15 to 20 people were milling about, watching the fight.
¶ 10 Renteria testified that respondent punched the victim. The victim stepped back, slipped on a patch of ice, and fell to his hands and knees. Respondent then "went under him and started stabbing him." The victim got back to his feet, start walked toward the alley, and collapsed. Respondent swung his knife in the air and said he was "going to kill everybody." A woman in a pickup truck drove by and told respondent to get in the truck. Respondent complied.
¶ 11 Gesele Quintero testified that she was the victim's girlfriend. On February 22, 2007, when she and the victim met after school, the victim told her that "some kid wanted to fight with him." Quintero told him not to fight, and they started to walk home together. As they were walking, some people called to the victim and told him that respondent was waiting to fight him. The victim initially told them he was not going to fight, but changed his mind and told Quintero the fight would be over quickly and then they could go home.
¶ 12 Quintero testified that 10 to 20 students from Heritage Middle School began walking toward the victim, and then, "out of nowhere, " respondent got "in [the victim's] face, saying something to him." The victim hit respondent, and they began fighting. The other students stood around watching the fight.
¶ 13 Quintero further testified that she had a difficult time seeing the fight because all of the students were surrounding the victim and respondent. Eventually, the victim fell down. Quintero saw respondent punch the victim, then heard other students scream, "he is bleeding." Quintero saw the victim holding his chest while respondent, standing in the middle of the street, screamed, "this is what you get when you mess with kings." One of the victim's friends walked toward respondent and asked him, "how can you stab somebody? This is supposed to be a one-on-one fight." At that point, Quintero saw a knife in respondent's hand. Respondent then got into a pickup truck and drove off.
¶ 14 Chicago police detective Joseph Green testified that, at 3:30 p.m. on February 22, 2007, he was called to the crime scene. When he arrived, the victim collapsed into Detective Green's arms. Detective Green was informed that the victim had been stabbed. He performed CPR on the victim, who was eventually transported to the hospital.
¶ 15 Chicago police officer Joseph Fitzgerald testified he recovered a knife from the crime scene. The parties stipulated that, if called to testify, forensic scientist Christopher Webb would testify that he found blood on the knife recovered by Officer Fitzgerald, as well as on clothes recovered from respondent. The parties also stipulated that, if called to testify, forensic scientist and expert in the area of DNA analysis Heather Ralph would testify that the victim could not be excluded as the person whose blood was on the recovered knife, and only 1 in 33 billion Hispanics could not be excluded as that individual. The parties further stipulated that, if called to testify, forensic pathologist Dr. Valerie Arangelovich would testify that the victim died from multiple stab wounds.
¶ 16 After the State rested, respondent called Francisco Temblador. Temblador testified that, on February 21, 2007, he was at his locker when he overheard some students saying they thought respondent was a gang member and they were going to "jump him after school." At home that evening, Temblador noticed that the victim had left him a comment on his MySpace page stating that Temblador should tell respondent, "I said he is a flakke." Temblador explained that the term "flakke" meant "King Killer." Temblador testified he called respondent and told him about the victim's comment. He also told respondent that some students were planning on jumping him.
¶ 17 Temblador further testified that he was in the school lunchroom the following day when he saw the victim approach and speak with respondent. Temblador could not hear what was being said. Afterward, respondent told Temblador the victim had been "talking crap" and had told him he "better watch his back."
¶ 18 Temblador testified that after school, he and respondent met at their locker and stalled for five minutes so the rest of the students could "clear out" from the front of the school. Then, they walked up 31st Street to Oak Park Avenue. As they walked, Aaron Avila approached them and told them the victim was waiting in the alley to fight. Respondent told Aaron he did not want to fight. Aaron insisted respondent should fight the victim and "get it over with." Temblador and respondent then crossed Oak Park Avenue and walked toward a church on the corner of Euclid Avenue. Respondent told Aaron he was not going to fight the victim because there were 20 kids standing around and he was afraid they would all "jump" him. Aaron walked away toward the alley. Soon after, the victim walked up and hit respondent three times on the side of his head. The crowd of kids formed a circle around them and told the victim to "whip his ass, kick his ass." Temblador's mother then drove up and told Temblador and respondent to get in her truck. As they got into the truck, one of the crowd members walked over to respondent and called him "King Killer" and "flakke." Temblador testified that he then noticed respondent's hands were bleeding and that he had a blue-handled knife.
¶ 19 Sabina Hernandez testified that she is Temblador's mother and respondent's older sister. Hernandez testified respondent was a former special education student who, when he was 11 years old, suffered a head injury that caused bleeding on his brain. Respondent then transferred to Heritage so "he could have a normal graduation with kids of his own age."
¶ 20 Hernandez testified that on February 22, 2007, she drove her pickup truck around looking for Temblador and respondent so they could help her clean out her garage. As she turned right onto 31st Street heading toward Heritage, she saw a crowd of 25 kids on her left. The kids were in a circle and Hernandez thought there must be a fight. Then, she saw respondent emerge from the circle. Hernandez told him to get in the pickup truck. At the same time, one of the kids, Chris Rousary, slapped respondent, called him a "King Killer, " and threatened to kill him. Another student grabbed at respondent, while other members of the crowd said, "kick his ass."
¶ 21 Hernandez testified that she drove away with both respondent and Temblador. Soon after, the police pulled her over. Hernandez did not see respondent with a knife and did not know the victim had been stabbed until they got to the police station.
¶ 22 Respondent also testified in his own defense. He testified that, on February 21, 2007, he was a 5-foot-5-inch-tall middle schooler who weighed approximately 110 pounds. It was his first day as a student at Heritage and many students gave him "threatening looks." After school, Temblador telephoned respondent and told him about the MySpace message from the victim. He also told respondent that other kids were talking about "jumping" him. Respondent testified he felt scared because he thought he might get killed or "beat up real bad." As a result of this fear, he brought a pocket knife to school the following day.
¶ 23 The next day at school, respondent heard "two big kids" say "king killer" as they passed him in the hallway. Later, while respondent was sitting at a table in the lunchroom, the victim said to him, "King Killer, watch your back." Respondent knew this was the same ...