Court of Appeals of Illinois, First District, Third Division
Modified upon denial of rehearing May 27, 2015.
Appeal from the Circuit Court of Cook County. 11 CR 14064. Honorable Matthew E. Coghlan, Judge Presiding.
For APPELLANT, Office of the State Appellate Defender, Chicago, IL (Michael J. Pelletier, Alan D. Goldberg, Alison L. S. Shah, of counsel).
For APPELLEE, Cook County State's Attorney, Chicago, IL (Anita Alvarez, Alan J. Spellberg, Christine Cook, Monique Patton, of counsel).
JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Hyman concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant-appellant Daniel Ramirez was convicted of four counts of attempted first degree murder and sentenced to four concurrent terms of 40 years in prison. On appeal, Ramirez contends that the trial court erred in imposing a sentence of 40 years because the court (1) improperly considered the use of a firearm when such use was already the subject of a mandatory firearm enhancement and (2) erroneously relied on a fact not in evidence -- Ramirez's gang membership -- in aggravation. Finding Ramirez's arguments forfeited, we affirm the judgment of the circuit court of Cook County. We further reject the State's contention that the trial court was required to sentence Ramirez to consecutive terms of imprisonment on each count of attempted first degree murder.
[¶3] Because the issues raised on appeal relate only to Ramirez's sentence, we will limit our recitation of the facts to those relevant to the sentencing issues.
[¶4] On August 9, 2011, around 3:30 p.m., shortly after the students at Sinclair High School in Chicago were dismissed, someone on the street fired multiple shots into a green van that was driving north on Paulina Street. Four young people were in the van and one of them, Rebecca Magana, a Sinclair student who had just been picked up after school, was shot in the arm. She was treated at the hospital and released but the bullet remained lodged in her arm.
[¶5] Several days later, after two eyewitnesses identified Ramirez as the shooter in a photo array and one later identified him in a police lineup, Ramirez was arrested. He was ultimately charged with multiple counts of attempted first degree murder and one count of aggravated battery.
[¶6] Witnesses at trial included the four occupants of the green van, the school principal, a student to whom the principal had been speaking when the shooting occurred, and a student who was in her mother's van parked on the street at the time of the shooting. Magana's boyfriend, Damien Garza, who was also in the green van, was a member of the Latin Saints street gang. A group of people standing on the corner of 50th Street and Paulina were members of either the Satan Disciples or the Gangster Disciples, both rivals of the Latin Saints.
[¶7] According to witnesses, the people standing on the corner were flashing gang signs and both the people on the corner and the occupants of the green van were shouting gang-related phrases and slogans. One of the eyewitnesses, Christina Garay,
testified that she observed a group of " gangbangers" standing on the corner as she walked to her mother's van. She knew they were " gangbangers" because she had seen them in her old neighborhood, and specifically recognized Ramirez, who was with the group, because she had known him since grammar school and used to live across the street from him.
[¶8] Once Garay was inside her mother's van, someone from the group on the corner ran into the street and threw a basketball at the green van. Garay then saw someone give Ramirez a gun, and Ramirez ran into the street and fired multiple shots at the van. Ramirez was also identified as the shooter by Paulina Sanchez, the student who had been talking to the principal at the time of the shooting and who knew Ramirez prior to the shooting. Finally, Garza, who looked out the back window of the van, identified Ramirez as the person who chased the van and shot at it.
[¶9] Garza testified that as the van drove past, the people standing on the corner were displaying the gang sign for the Satan Disciples. They also shouted insults disrespecting the Latin Saints and Garza responded by shouting insults directed at the Satan Disciples. The individual in the passenger seat of the van, who was not a gang member himself, also ...