Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. 10 CR 5866 . The Honorable Arthur F. Hill, Jr., Judge, presiding.
On appeal from defendant's conviction and sentence for attempted first degree murder, the appellate court rejected defendant's contention that the trial court improperly instructed the jury on the charge by failing to tell the jury to find defendant specifically intended to kill the victim rather than " an individual," and defendant's sentence was upheld, since defendant did not object to the instruction or raise the issue in his posttrial motion and there was no plain error, the sentence was within the statutory range, and no impermissible aggravating factors were considered; however, the cause was remanded with directions to correct the mittimus to reflect the correct credit for presentence custody.
FOR PLAINTIFFS-APPELLEE: Jocelyn M. Schieve, Mary P. Needham, Cook County State's Attorney, Chicago, IL.
FOR DEFENDANT-APPELLANT: Tonya Joy Reedy, Office of the State Appellate Defender, Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
[¶1] A jury convicted defendant, Ignacio Valadovinos, of attempted first degree murder while personally discharging a firearm (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)) in a shooting outside a bar at 25th Street and California Avenue. Valadovinos fired five gunshots toward Ernesto Fernandez and sped off, leading to a car chase and foot pursuit by Chicago police officers.
[¶2] Valadovinos raises three issues on appeal: (i) the trial court improperly instructed the jury on the attempted first degree murder charge by not telling the jury to find Valadovinos specifically intended to kill Ernesto Fernandez rather than " an individual" ; (ii) in sentencing Valadovinos
to 43 years in prison, the trial court failed to give proper weight to the mitigating evidence and impermissibly considered aggravating factors actually inherent in the offense; and (iii) he was shorted on credit for days spent in presentencing custody.
[¶3] We affirm Valadovinos's conviction and sentence, and instruct the circuit clerk to correct the mittimus. First, while Valadovinos failed to object to the attempted first degree murder instruction, and did not raise the issue in his posttrial motion, the trial court committed no plain error in the instructions. Second, the trial judge imposed a sentence within the statutory range, and this decision is entitled to great deference and weight. Moreover, the trial court did not consider impermissible aggravating factors. Finally, Valadovinos correctly asserts that his mittimus should be adjusted to reflect a presentence credit of 692 days in custody.
[¶5] In the early hours of February 28, 2010, a fight involving about 10 people broke out in a bar near 25th Street and California Avenue. Bar security pushed the brawlers out to the street. Among the group were Ernesto Fernandez, his brother Carlos Fernandez, and their cousin Ebelia Ocampo. As the fight continued, Ernesto and three or four other people stood in the middle of California Avenue; the rest of the group stood on the adjoining sidewalk. Suddenly, a green Dodge Stratus sped down California Avenue, stopping just past the people positioned in the middle of the street. A male Hispanic, whom Ernesto did not recognize but later identified as the defendant, got out of the front passenger seat, pulled out a gun, and from about 40 feet away, opened fire at Ernesto.
[¶6] Valadovinos advanced forward and continued to fire at Ernesto as Ernesto dodged the oncoming bullets. Valadovinos fired a shot, from a range of between 4 and 10 feet, at Ernesto, which hit the ground near Ernesto. Valadovinos then ran back toward the car, but before getting there, pointed his gun toward Carlos. Carlos made eye contact with Valadovinos, and while the gun was aimed at him, Carlos heard a click. Valadovinos got in the front passenger door, and the car took off northbound on California Avenue.
[¶7] Chicago police lieutenant Paul Kane happened to be driving northbound on California toward 25th Street when he saw the fight outside the bar, and heard the sound of four or five gunshots. Lieutenant Kane reported shots fired and radioed in the description of the green Dodge Stratus.
[¶8] Chicago police officers Lobianco, Pruger, Mueller, and Lopez heard the report and proceeded to the area in a single squad car. Kane, meantime, pursued the car as it took off northbound on California Avenue, and as he caught up to it, Valadovinos ran out of the car. Lieutenant Kane followed the car in his marked squad, while Officers Lobianco and Lopez, who had arrived on the scene, pursued Valadovinos on foot. Lobianco and Mueller saw Valadovinos holding a handgun in his left hand, and Lobianco saw him drop the gun as he was running. Officer Pruger followed the chase in his squad, and then on foot. Pruger caught Valadovinos and tackled him to the ground. Valadovinos then head butted Pruger on the left side of his face. Officer Mueller witnessed the head butt and assisted in taking Valadovinos into custody.
[¶9] An evidence technician recovered a semiautomatic pistol where Valadovinos had dropped it and five cartridge cases from the scene of the shooting. A forensic
scientist analyzed the cartridge cases and concluded all were fired from the semiautomatic pistol.
[¶10] The State indicted Valadovinos on three counts of attempted first degree murder while personally discharging a firearm (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)), two counts of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2010)), three counts of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1) (West 2010)), and two counts of aggravated battery of a police officer (720 ILCS 5/12-4(b)(18) (West 2010)). At trial, Ernesto and Carlos Fernandez and Ebelia Ocampo identified Valadovinos as the assailant.
[¶11] The trial court gave the following jury instructions for attempted first degree murder, modeled after the pattern jury instructions for attempted first degree murder. Illinois Pattern Jury Instructions, Criminal, Nos. 6.05X and 6.07X (4th ed. 2000):
" A person commits the offense of attempt first degree murder when he, with the intent to kill an individual, does any act which constitutes a substantial step toward the killing of an individual.
The killing attempted need not have been accomplished."
" To sustain the charge of attempt first degree murder, the State must prove the following propositions:
First : That the defendant performed an act which constituted a substantial step toward the ...