People v. Aguilar

• Citation: 944 N.E.2d 816,348 Ill.Dec. 575,408 Ill.App.3d 136
• Decision Date: 23 February 2011
• Docket Number: No. 1–09–0840.,1–09–0840.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Alberto AGUILAR, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

408 Ill.App.3d 136
944 N.E.2d 816
348 Ill.Dec. 575

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Alberto AGUILAR, Defendant–Appellant.

No. 1–09–0840.

Appellate Court of Illinois, First District, Third Division.

Feb. 23, 2011.

[944 N.E.2d 818]

Michael J. Pelletier, State Appellate Defender (Deputy Defender Alan D. Goldberg, Assistant Appellate Defender David C. Holland, of counsel), for Appellant.Anita Alvarez, State's Attorney of Cook County (Assistant State's Attorneys Alan J. Spellberg, Brian Hodes, of counsel), for Appellee.

[408 Ill.App.3d 136] OPINION Presiding Justice QUINN delivered the judgment of the court, with opinion.

[348 Ill.Dec. 577] Following a bench trial, defendant was found guilty of one count of aggravated unlawful use of a weapon (AUUW) where defendant [408 Ill.App.3d 137] knowingly carried a loaded firearm at a time when he was not in his own home or place of business (720 ILCS 5/24–1.6(a)(1), (a)(3)(A) (West 2008)), and one count of unlawful possession of a firearm where defendant was under 18 years of age and possessed a loaded, concealable handgun while he was in the backyard of a friend's home (720 ILCS 5/24–3.1(a)(1) (West 2008)). Defendant was sentenced to 24 months of probation for the AUUW offense and no sentence was imposed for the offense of unlawful possession of a firearm.

On appeal, defendant argued in his brief that both the AUUW statute and the unlawful possession of a firearm statute violated federal and state guarantees of the individual right to bear arms as applied to him under the United States Supreme Court decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In Heller, the Supreme Court held that the second amendment protects the right to keep and bear arms for the purpose of self-defense in one's home and struck down a District of Columbia law that banned the possession of handguns in the home. After the State filed its response brief but before defendant filed his reply brief, the United States Supreme Court issued its ruling in McDonald v. City of Chicago, –––U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), which incorporated the Second Amendment right recognized in Heller against the states.

On October 5, 2010, this court sua sponte issued an order finding that: (1) defendant was convicted of AUUW (720 ILCS 5/24–1.6 (West 2008)) and unlawful possession of a firearm (720 ILCS 5/24–3.1 (West 2008)); (2) the AUUW statute was amended by Public Act 96–742, which took effect on August 29, 2009; and (3) the amended AUUW statute permits a person to carry a loaded firearm “on the land or in the legal dwelling of another person as an invitee with that person's permission” (Pub. Act 96–742 (eff.Aug. 25 2009) (amending 720 ILCS 5/24–1.6)). This court ordered the parties to file supplemental briefs addressing two issues: (1) “[w]hether the amended AUUW statute (720 ILCS 5/24–1.6 (West 2008)) can be applied retroactively to the facts in this case”; and (2) “[w]hether there are any reported cases which have applied the holding in Heller [citation] or in McDonald [citation] to [a] case involving a defendant convicted of carrying a weapon outside his home.”

In his supplemental brief, defendant contends that the amended AUUW statute applies retroactively to the facts of his case where the amendment merely clarified the or the statute under which defendant was convicted. In its supplemental brief, the State contends that the amended AUUW statute cannot be applied retroactively to the facts of this case where the legislature specifically provided for an effective date of August 29, 2009, more than a year [408 Ill.App.3d 138] after the date of defendant's offense. The State

[348 Ill.Dec. 578 , 944 N.E.2d 819]

notes that in People v. Dawson, 403 Ill.App.3d 499, 343 Ill.Dec. 274, 934 N.E.2d 598 (2010), this court recently held that the AUUW statute does not violate the constitutional right to bear arms where the decisions in Heller and McDonald were limited to the right to possess a handgun in the home for self-defense purposes.

For the following reasons, we find that the amended AUUW statute cannot be applied retroactively to this case and even if the amended statute applied, defendant's conviction would stand under the facts of this case. We further find that the AUUW statute does not violate defendant's constitutional right to bear arms under the United States Supreme Court decisions in Heller and McDonald.

I. BACKGROUND

At trial, Officer Thomas Harris testified that on the evening of June 12, 2008, he was on surveillance duty near 4217 West 25th Place, in Chicago. Officer Harris observed a group of male teenagers screaming, making gestures, and throwing bottles at passing vehicles. Officer Harris identified defendant as one of the teenagers and testified that defendant was holding the right side of his waist area. Officer Harris testified that he saw defendant and three other individuals walk into an alley and radioed other officers nearby.

Officer John Dolan testified that after receiving radio communication from Officer Harris, he and Officers Wagner and Triantafillo proceeded to 4217 West 25th Place. Officer Dolan testified that he saw several individuals walk into the backyard of that address. The officers entered the backyard. Officer Dolan testified that he heard defendant yell an expletive and saw that defendant had a gun in his right hand. Officer Dolan observed defendant drop the gun to the ground. Officer Dolan took defendant into custody while another officer recovered the gun. When Officer Dolan examined the gun, he discovered that the serial number had been scratched off and there were three live rounds of ammunition loaded in the gun. Officer Dolan testified that he learned that defendant did not live at 4217 West 25th Place.

Defense witness Romero Diaz testified that he lived at 4217 West 25th Place and was friends with defendant. Diaz testified that on the evening of June 12, 2008, he was with defendant and another friend in his backyard waiting for defendant's mother to pick defendant up. Diaz testified that three or four police officers entered his backyard with flashlights and ordered him and his friends to get on the ground. Diaz testified that one of the officers tackled defendant because defendant hesitated to get down on the ground. Diaz testified that he was with defendant in the backyard for 30 to 40 minutes and [408 Ill.App.3d 139] defendant did not have a gun and did not drop a gun to the ground when the officers entered the backyard.

Defendant testified that on the night of June 12, 2008, he was with friends at the corner of 26th Street and Keeler Avenue, in Chicago. After about 45 minutes at that corner, defendant and another friend walked to Diaz's backyard. Defendant testified that he was waiting for his mother to pick him up when three police officers entered the yard with flashlights and guns drawn. Defendant testified that an officer yelled at him to get on the ground and when defendant moved slowly, one of the officers tackled defendant. Defendant testified that the officers searched the yard, then showed defendant a gun and accused him of dropping the gun. Defendant denied having a gun at any time that evening and denied that he dropped the gun to the ground.

Upon weighing the credibility of the witnesses, the circuit court found defendant

[348 Ill.Dec. 579 , 944 N.E.2d 820]

guilty of AUUW and unlawful possession of a firearm. Defendant was sentenced to 24 months' probation on the AUUW charge, but entered no sentence on the charge of unlawful possession of a firearm. Defendant now appeals.

II. ANALYSIS A. Retroactive Application of Amended AUUW Statute

This court must first determine which version of the AUUW statute applies in this case. At the time of defendant's conviction, the AUUW statute provided in pertinent part:

“(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; or

* * *; and

(3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense.” 720 ILCS 5/24–1.6(a)(1), (a)(3)(A) (West 2008).

The AUUW statute was amended by Public Act 96–742 as follows, in pertinent part:

“(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of [408 Ill.App.3d 140] business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm[.]” Pub. Act 96–742 (eff.Aug.25, 2009) (Emphasis Added.)

Accordingly, our legislature amended the AUUW statute to expand the exceptions in subsection 24–1.6(a)(1) to include in his or her “legal dwelling” and when he or she is “on the land or in the legal dwelling of another person as an invitee with that person's permission.” Pub. Act 96–742, (eff.Aug.25, 2009).

Defendant contends that the amended AUUW statute should be treated as a clarification of the original statute, which had been misapplied by this court in People v. Price, 375 Ill.App.3d 684, 313 Ill.Dec. 829, 873 N.E.2d 453 (2007). In Price, this court determined that the defendant was not in his “abode” when he possessed a weapon within the meaning of the AUUW statute, when he was spending the night as a guest at his sister's home. Price, 375 Ill.App.3d at 695, 313 Ill.Dec. 829, 873 N.E.2d 453. In so holding, this court noted that equating “abode” with “ ‘overnight living quarters' ” could result in “homeowners...