People v. Alvarez

58 N.E.3d 147

405 Ill.Dec. 340

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Jesse ALVAREZ, Defendant–Appellant.

No. 2–14–0364.

Appellate Court of Illinois, Second District.

June 20, 2016.

Michael J. Pelletier, Thomas A. Lilien, and Steven E. Wiltgen, all of State Appellate Defender's Office, of Elgin, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and David A. Bernhard, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice ZENOFF delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant, Jesse Alvarez, was convicted of five counts of attempted first-degree murder (720 ILCS 5/8–4(a), 9–1(a)(1) (West 2008)), two counts of aggravated battery with a firearm (720 ILCS 5/12–4.2(a) (West 2008)), and one count of armed violence (720 ILCS 5/33A–2(a) (West 2008)). The trial court sentenced defendant to a total of 88 years' imprisonment on the five attempted- first-degree-murder convictions. For two of those convictions, the court determined that consecutive sentencing was mandatory pursuant to section 5/8–4(d)(1) of the Unified Code of Corrections (Code) (730 ILCS 5/5–8–4(d)(1) (West 2008)).

¶ 2 On appeal, defendant challenges the portions of the sentencing orders that required consecutive sentences as to the convictions of attempted first-degree murder. He contends that the court erred in imposing the consecutive sentences, because the evidence was insufficient to support a finding that he inflicted severe bodily injury on the victim, Alexander Carrera, during the commission of attempted first-degree murder as charged in counts I and II. We affirm in part, vacate in part, and remand.

¶ 3 I. BACKGROUND

¶ 4 Defendant was charged in an eight-count indictment with five counts of attempted first-degree murder (counts I through V), two counts of aggravated battery with a firearm (counts VI and VII), and one count of armed violence based on criminal damage to property (count VIII). Pertinent to this appeal, count I alleged attempted first-degree murder in that defendant personally discharged a firearm causing great bodily harm, permanent disability, or permanent disfigurement to Carrera by shooting him in the hip area. Count II alleged attempted first-degree murder in that defendant personally discharged a firearm causing great bodily harm, permanent disability, or permanent disfigurement to Carrera by shooting him in the thigh. Counts III, IV, and V alleged attempted first-degree murder in that defendant fired three other shots in Carrera's direction, but those shots did not hit him.

¶ 5 Defendant's bench trial commenced in September 2013. The State's first witness, Samuel Sosa, testified that he and defendant were both members of the Latin Kings in Aurora, Illinois. The shooting took place on July 1, 2009; before that date, Sosa had possession of a Latin Kings “nation's gun,” a .45–caliber semi-automatic handgun. Sosa had observed that this gun was loaded with seven or eight rounds, which included a mix of standard rounds and what Sosa described as “shotgun rounds.” Sosa gave this gun to defendant “a couple days” before July 1, 2009. After July 1, 2009, defendant returned the gun to Sosa, saying that he had used the gun to shoot a “Maniac” (Maniac Latin Disciple) in the back of the leg.

¶ 6 Azael Ramirez, another member of the Latin Kings, testified that he had seen the gun before July 1, 2009, and had been sufficiently curious about the nonstandard rounds to empty the gun's magazine to look at them. He testified that the magazine contained eight rounds, four of which were the nonstandard ones containing shot. When he finished looking at the rounds, he reloaded the magazine, alternating the standard rounds and the shot rounds. After the shooting, defendant came to Ramirez and spoke with him. Defendant said that Carrera was trying to go back into his house when defendant started firing.

¶ 7 Carrera testified that he was at his house on the night of July 1, 2009, when he went outside to throw away a cigarette. He then noticed that someone, whom he later identified as defendant, was standing about 20 feet away at the bottom of the steps, his arms concealed behind him. Defendant asked, “What do you claim, dog?”—meaning, “State your gang affiliation.” Defendant's question and posture prompted Carrera to turn around to try to run back into his house. Defendant fired multiple shots at Carrera, hitting him twice, once in the upper thigh and once near his knee. He felt a sting and fell to the floor, where he stayed until the police arrived. (An Aurora police officer, who was the first person to respond to the scene of the shooting, testified that Carrera walked out of the house when he arrived. However, the officer called an ambulance after seeing blood on Carrera's leg.)

¶ 8 Carrera further testified that, in the period between the July 2009 shooting and the September 2013 trial, he had felt occasional pain in his leg during cold weather. This most recently happened two winters before the trial. He described the injury to his knee as a bullet graze. He also identified photographs showing his upper leg with numerous small wounds and his knee with a small wound. Some bullet fragments initially remained in the wounds ; some came out on their own on the day of the shooting and others fell out later. He believed that the last fragment came out after four or five months. Carrera testified that he had scars from the wounds, but he did not specify where. He also identified photographs showing firearm damage to his house.

¶ 9 On cross-examination, Carrera testified that he had an unrelated “altercation” with a 12–year–old boy before the July 1, 2009, shooting. During that altercation, the 12–year–old boy shot at Carrera with a BB gun, striking him in the leg. In response to the State's objection to that line of questioning, defense counsel responded that he was attempting to prove that the BB gun shot was the source of Carrera's injuries.

¶ 10 The parties entered into a stipulation concerning Carrera's medical treatment, as follows:

“1. That on July 1, 2009, Alexander Carrera was admitted at approximately 12:59 A.M. and was treated in the emergency department of Provena Mercy Center hospital.

2. That * * * Alexander Carrera was treated for puncture wounds to the upper left hip and thigh, and the lower left leg areas * * *.

3. That * * * the damage to Alexander Carrera's upper hip and left thigh area were approximately 20, 2x2 mm wounds in a cluster at the left hip and thigh area that resembled a shotgun pattern.

4. That x-rays of Carrera's upper left hip and buttock region showed multiple rounded metallic bullet fragments/buck shot fragments that are compatible with a gunshot injury. A few metallic bullet fragments clearly identified within the anterior subcutaneous tissues.

5. That x-rays of Carrera's left hip showed two metallic densities which project over the left lower side of the abdomen that are compatible with a gunshot wound injury.

6. There were also two metallic densities which project in the medial tissues about the left knee joint compatible with a gunshot wound injury.

7. That Alexander Carrera was treated and released from Provena Mercy Center hospital approximately 8:10 A.M. on July 1, 2009 with the instructions to clean the wounds three times a day with soap and water, apply bacitracin, and return if there are any signs of infection.”

¶ 11 Defendant rested without presenting evidence.

¶ 12 In its ruling, the court found defendant guilty on all eight counts. As to counts I and II, the court specifically found that the State proved beyond a reasonable doubt that defendant had caused “great bodily harm and permanent disfigurement” to Carrera, thereby requiring a 25–year enhancement to any sentence imposed on each of those counts (720 ILCS 5/8–4(c) (1)(D) (West 2008)). Additionally, because of the “seriousness of the victim's injuries,” the court rejected defendant's suggestion that the injury to Carrera's knee area might have been the result of the shot from the BB gun. The court made no other findings as to the extent of Carrera's injuries, and it did not make a finding as to whether Carrera suffered “severe bodily injury.”

¶ 13 At the subsequent sentencing hearing, the State argued that, because the court had made a finding of “severe bodily harm,” the sentences for counts I and II had to be served consecutively. Defendant did not dispute the State's assertion that the court had made that finding, nor did he attempt to explain that the proper finding needed for the imposition of consecutive sentences was “severe bodily injury, ” not “harm.”

¶ 14 Before imposing the sentences, the court stated that, “as previously found ” (emphasis added), defendant had personally discharged a firearm and the resulting injuries constituted severe bodily injury to Carrera. It ruled that consecutive sentences were thus mandatory pursuant to section 5–8–4(d)(1) of the Code. The court sentenced defendant to 31 years' imprisonment on count I, to be served consecutively to 31 years' imprisonment on count II. Both sentences included 25–year enhancements. The court imposed a 26–year sentence on each of counts III, IV, and V, which were to run concurrently with one another but consecutively to the sentences on counts I and II. The court determined that counts VI, VII, and VIII (two counts of aggravated battery with a firearm and one count of armed violence) merged into the attempted-first-degree-murder counts. Defendant did not file a postsentencing motion, but he filed a timely notice of appeal.

¶ 15 II. ANALYSIS

¶ 16 Defendant argues that the court erred in imposing consecutive sentences on counts I and II. The State responds that defendant forfeited the issue by failing to object before the trial court to the imposition of consecutive sentences. Defendant concedes that he did not raise the issue below, but he argues that we should review...