People v. Berrios

• Decision Date: 20 April 2018
• Docket Number: No. 2–15–0824,2–15–0824
• Citation: 2018 IL App (2d) 150824,103 N.E.3d 574
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Gabriel Enrique BERRIOS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (2d) 150824

103 N.E.3d 574

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

v.Gabriel Enrique BERRIOS, Defendant–Appellant.

No. 2–15–0824

Appellate Court of Illinois, Second District.

Opinion filed April 20, 2018

Michael J. Pelletier, Thomas A. Lilien, and Bruce Kirkham, of State Appellate Defender’s Office, of Elgin, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick Delfino, Lawrence M. Bauer, and Stephanie Hoit Lee, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 Section 25–5(a)(3) of the Criminal Code of 2012 (the Code) ( 720 ILCS 5/25–5(a)(3) (West 2012) ) makes it a misdemeanor offense for a person to have contact with street gang members after having been, inter alia , "ordered by a judge in any non-criminal proceeding to refrain from direct or indirect contact with a streetgang member or members." After a bench trial, defendant, Gabriel Enrique Berrios, was convicted of violating this statute and sentenced to 30 days in the county jail. On appeal, he contends that the statute is unconstitutional, that he was not proven guilty of the offense beyond a reasonable doubt, and that the trial court erred in admitting hearsay evidence. We affirm.

¶ 2 The relevant facts are not in dispute. In 2012, the State filed a civil complaint under the Illinois Streetgang Terrorism Omnibus Prevention Act (Act) ( 740 ILCS 147/1 et seq. (West 2012) ), which targeted 35 named individuals and "all *** unnamed" individuals who were members of the Latin Kings street gang in Aurora. The complaint sought to hold members of the gang accountable for monetary damages and enjoin its members from further gang activity. In particular, the injunction sought to prohibit members from such activities as carrying weapons, selling drugs, drawing graffiti, and "[s]tanding, sitting, walking, gathering, meeting, or appearing anywhere in public view" with any other member of the Latin Kings or with a member of any other street gang. See People v. Latin Kings Street Gang, et al., No. 12–CH–1898 (Cir. Ct. Kane County).

¶ 3 Defendant was named as a party in the State's civil complaint. More specifically, the complaint alleged that defendant had been found in possession of a stolen gun and had fled from the police as part of Latin Kings criminal activities. Evidence attached to the complaint indicated that defendant had identified himself as a member of the Latin Kings, that he had numerous encounters with the police while in the company of other known members of the gang, that he had tattoos consistent with Latin Kings symbols, and that he had been observed displaying the gang's "colors" and hand signals.

¶ 4 Defendant was personally served with a summons and a copy of the civil complaint on May 26, 2012. The summons instructed defendant to appear in court "to answer the complaint in this case" and further advised defendant that a default judgment could be "entered against [him] for the relief prayed for in the complaint." On December 12, 2012, the State filed a motion for a default judgment against defendant. According to the State's motion, on July 10, 2012, which was the first court date on the State's complaint, defendant personally appeared in court without counsel. Thereafter, defendant did not return to court; he did not file a written appearance or answer the State's complaint. On December 21, 2012, the trial court (Judge Joseph M. Grady) entered a default judgment against him. Notice of the entry of the default judgment was mailed to defendant on January 11, 2013, which brings us to the instant criminal case.

¶ 5 According to the State's misdemeanor complaint, on July 4, 2013, defendant was arrested for having unlawful contact with a street gang member. See 720 ILCS 5/25–5(a)(3) (West 2012). Prior to trial, defendant sought to have section 25–5(a)(3) or the injunction declared unconstitutional because it impermissibly interfered with his first amendment right to freedom of speech. The trial court (Judge Donald M. Tegeler Jr.) ultimately denied the motion.

¶ 6 Although we do not have a transcript of these misdemeanor proceedings, our review is made possible by an unusually comprehensive 39–page single-spaced agreed statement of facts. See Ill. S. Ct. R. 323(d) (eff. July 1, 2017). We say unusually because most alternatives to transcripts this court receives lack such specificity. For this, the parties have our appreciation.

¶ 7 At the start of defendant's trial, the parties jointly asked the court to take judicial notice of "the entire court file" in the civil case. The court granted their request. Then, two Aurora police officers testified that, at around 5 a.m. on July 4, 2013, officers were called to the scene of a disturbance in the parking lot of an apartment complex on the west side of Aurora. When the officers arrived, they learned that defendant was attempting to mediate a dispute between two young men—Angelo Parra and Noel DeLuna. Parra and DeLuna had arrived at the apartment complex in separate cars; however, witnesses told the police that defendant and Parra had arrived in the same vehicle. One of the officers, Aaron Spooner, testified that, when he arrived, he ordered defendant out of a car while another officer was speaking to Parra. Spooner testified that he "always had a good rapport with Mr. Berrios" and that defendant "did try to help calm things down" between Parra and DeLuna. Spooner overheard defendant refer to Parra as "King" and DeLuna as "White Boy."

¶ 8 Spooner was aware of the civil injunction entered against defendant, and he searched a computerized police database to determine whether Parra and DeLuna were listed as gang members. After the computer query, Spooner arrested defendant for having unlawful contact with street gang members.

¶ 9 Aurora police investigator Erik Swastek testified as an expert on street gangs. Specifically, Swastek testified that for the last three years he had been a member of the Aurora Police Department's "Special Operations Group," or gang unit. A gang, said Swastek, is a group of three or more individuals who pursue common, and often criminal, goals. Swastek generally investigates gang-related crimes and had personally investigated between 120 and 150 gang-related offenses. Swastek also testified about the common patterns and practices of Aurora-area street gangs, including the Latin Kings. According to Swastek, the Aurora Police Department gathers information about local street gangs. Officers document all police contact with suspected gang members, and these "gang information sheets" are stored in a departmental database. Several criteria are used to determine an individual's relationship to a street gang, such as his or her self-identification, tattoos, clothing, jewelry, location, associates, and use of signs, graffiti, or hand signals. An individual may be listed as "inactive" in the database if he or she has not been the subject of a gang information sheet for at least one year.

¶ 10 As an expert on street gangs, Swastek opined that Parra was a gang member. Swastek testified that Parra had "at least seven, probably more" gang information sheets on file. One report from 2012 indicated that Parra "self-admi[tted]" that he was a gang member—specifically, a member of the Latin Kings. The gang information sheet from the day of the incident with defendant describes Parra as having a teardrop tattoo on his face. According to Swastek, a teardrop tattoo is common among gang members. Swastek also testified that defendant's reference to Parra as "King" was a way of acknowledging Parra as a fellow member of the Latin Kings. Swastek stated that, from his personal knowledge, he could not say whether Parra was a "currently active" member of the gang at the time of trial, but that Parra was listed in the database as an "active" gang member on the day of the incident. On cross-examination, Swastek testified that Parra was the subject of five gang information sheets rather than seven. (As it bears on the issues below, we note that no gang information sheets were introduced as evidence.)

¶ 11 As part of defendant's case in chief, occurrence witness Sabrina Landeros testified that "at no point" did she see defendant and Parra in the same vehicle. Landeros further stated that defendant was asked by "the officer" to go and talk to Parra and DeLuna.

¶ 12 After the parties' arguments, the trial court found defendant guilty. In its ruling, the court noted evidence that defendant had been served with the complaint in the civil case and that a default judgment was entered. The court stated that it would not consider defendant' argument that the injunction was unlawful or unconstitutional, as any challenge to the injunction "need[ed] to be raised with the civil court." Instead, the court found that the injunction was in full force and effect on the day of the offense and that, because he was served with the complaint, defendant had constructive notice of the injunction. The court found that there was unrebutted expert testimony that Parra was a member of the Latin Kings and that defendant knew that Parra was a gang member, since he referred to him as "King." The court noted that section 25–5(a)(3) required the State to prove not that Parra was a member of the Latin Kings specifically, but rather that defendant knew that Parra was a member of any street gang. The court stated that it did not believe Landeros's testimony that defendant and Parra were not in the same vehicle. However, the court noted that, even if defendant's only contact with Parra was when they spoke outside of the vehicles, defendant was still guilty of the offense; according to the court, "[t]he length of the contact [wa]s not important, because defendant was enjoined from having any direct or indirect contact with any street gang member. To the extent the court felt that defendant should be applauded ...