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People v. Ortiz

Court of Appeals of Illinois, First District, First Division

October 17, 2016

ERICK ORTIZ, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 09 CR 16082 Honorable Maura Slattery Boyle, Judge Presiding.

          JUSTICE HARRIS delivered the judgment of the court, with opinion.[*] Presiding Justice Connors and Justice Cunningham concurred in the judgment and opinion.



         ¶ 1 Defendant Erick Ortiz was sentenced to 60 years' imprisonment for first degree murder. Defendant was 15 years old when the crime occurred. On appeal, defendant contends that his sentence must be vacated and the matter remanded for resentencing because (1) his sentence resulted from a statutory scheme that violates the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution and (2) the trial court abused its discretion in sentencing him to a de facto life sentence that is 25 years above the required minimum. Defendant also contends that two of his three murder convictions should be vacated under the one-act, one-crime rule. For the following reasons, we vacate defendant's sentence and remand for resentencing. We also order the mittimus corrected to reflect only one murder conviction.

         ¶ 2 JURISDICTION

         ¶ 3 The trial court sentenced defendant on August 23, 2013. He filed a motion to reconsider sentence, which the trial court denied on September 16, 2013. His notice of appeal was filed on September 30, 2013. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 (eff. Oct. 1, 2010) and 606 (eff. Mar. 20, 2009), governing appeals from a final judgment of conviction in a criminal case entered below.

         ¶ 4 BACKGROUND

         ¶ 5 Defendant was charged with first degree murder, and other offenses, in connection with the death of 15-year-old Alex Arellano. His codefendant, Jovanny Martinez, was also charged with first degree murder. On May 1, 2009, the day of the incident, Martinez was arrested and had in his possession a gun that subsequently was determined to have fired a bullet recovered from the victim. Martinez's clothing also contained stains of the victim's blood and his pants tested positive for gunshot residue. Defendant was arrested several months later and admitted his involvement in the murder in a videotaped statement, portions of which were published at his trial.

         ¶ 6 In the statement, defendant stated that he is a member of the Latin Kings, and on May 1, 2009, he had heard that the victim, a "flake" or person who was not a Latin King, was in their territory. He had a shag hairstyle and had been warned to get out of the area or he would be killed. The victim laughed and did not leave the area, which defendant said was "stupid." Arming himself with a rock, defendant got into a car with friends to try to find this flake. When they found him, he was with two girls. Defendant and his group asked the victim who he was with and to make certain gang signs. He refused and defendant "did it the right way" and continued to confront him. One of defendant's friends pulled out a baseball bat and others in the car came out and they started beating the victim. When the victim tried to run away, defendant threw a rock at his back. Defendant's friends yelled "hit him with the car!" The victim stood up after being struck by the car and stood still, seemingly waiting for defendant to hit him. Defendant then hit the victim in the face. The others came and started hitting the victim. The group separated and defendant found himself alone with the victim. A neighbor came out and said to get the victim out of there and to take him to the hospital. Defendant grabbed the victim and dragged him down into the gangway to avoid getting into trouble. Martinez joined defendant and punched the victim. Defendant pulled the victim "all the way back" into the gangway and closed the door. When he turned around, he saw Martinez with his gun drawn. Defendant told Martinez not to shoot the victim, but Martinez fired at the victim's head. Defendant told Martinez to put the body in a garbage can or in a nearby pool, but Martinez just wanted to get out of there. When defendant returned the next morning to check on the victim's body he found it was badly burned. Defendant did not know who burned the body.

         ¶ 7 The trial court found defendant guilty of first degree murder, finding that defendant and his group attempted "to terrorize a community and individual" and held the misconception "that part of the City of Chicago actually belonged to you." The trial court acknowledged that defendant told Martinez not to shoot the victim but concluded that it "doesn't alleviate him of the ultimate consequence, the ultimate actions of what all of them did out there that afternoon."

         ¶ 8 Defense counsel filed a motion for a new trial, which the trial court denied. At defendant's sentencing hearing, the State presented evidence in aggravation. A Cook County correctional officer testified about an incident on May 29, 2013, where defendant struck another detainee in the head with a slashing motion and had to be pepper sprayed. A 3½ inch metal shank was found nearby and the detainee was bleeding from his head. The correctional officer also testified about another incident where defendant was found possessing a shank and an incident involving a fistfight. The State argued that defendant was "most significantly likely to recommit violen[t] offenses if he's released."

         ¶ 9 In mitigation, defense counsel highlighted defendant's troubled childhood as detailed in the presentence investigation report (PSI). The report stated that defendant was born in Chicago on November 27, 1993. Defendant had no prior juvenile adjudications or adult convictions. Defendant's neighborhood is characterized by violence and "gang banging, " and he does not know the identity of his biological father. He has never had a father figure present in his life and he described his relationship with his mother as "bad." His mother abused alcohol and drugs throughout his life and was both physically and emotionally abusive toward her children. He stated that "[s]he used to call me a piece of s***-that was my official name." He was taken into the custody of the Department of Children and Family Services (DCFS) when he was six years old. He was in DCFS custody for two years before he returned to his mother's care. Defendant is the oldest of his mother's children.

         ¶ 10 Defendant started drinking alcohol at the age of eight, and he consumes alcohol four times a week. He stated that no one has expressed concern about his alcohol use and he did not think it affected his education. He also smoked marijuana at the age of 9, and used cocaine when he was 11 years old. In 2008 he was stabbed by members of the Satan Disciples street gang and that same year, he joined the Latin Kings. Defendant was expelled from high school in ninth grade for "fights and ditching school" but has been attending school while incarcerated. Defendant "tried to cut [him]self" while in the Juvenile Temporary Detention Center.

         ¶ 11 Before sentencing defendant, the trial court noted that defendant and his group "hunt[ed]" down the victim when he came into Latin Kings territory. It found the notion that an area "belongs" to a gang "absurd" because "[t]he streets are for everyone." It stated that what defendant and his group did to the victim was "unfathomable" and that they lacked acknowledgment that one's actions bear consequences. The trial court also recognized that defendant had "a difficult upbringing" and his parents "allowed" him to quit school or run the streets. However, it stated that "everybody is accountable" and defendant is "going to pay the price here physically by being incarcerated." The trial court stated that defendant knew what he did to the victim was wrong and "[defendant's] pain or what [he] endured does not excuse [his] infliction of pain on another human being or another ...

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