People v. Bustos

• Decision Date: 29 October 2020
• Docket Number: No. 2-17-0497,2-17-0497
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Luis F. BUSTOS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 170497

163 N.E.3d 819

444 Ill.Dec. 256

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

v.Luis F. BUSTOS, Defendant-Appellant.

No. 2-17-0497

Appellate Court of Illinois, Second District.

Opinion filed October 29, 2020

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

¶ 1 Following a jury trial, defendant, Luis F. Bustos, was convicted of multiple counts of aggravated domestic battery and domestic battery. The trial court merged the convictions into a single count of aggravated domestic battery. On appeal, defendant raises five issues: whether (1) the trial court erred in admitting unfairly prejudicial and irrelevant evidence, (2) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (3) trial counsel was ineffective, (4) cumulative error deprived defendant of a fair trial, and (5) the trial court improperly relied on a factor inherent in the offense in imposing its sentence. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On May 27, 2016, defendant had a verbal and physical altercation with Karina Estrada, his girlfriend and mother of their daughter, A.B. As a result of that altercation, Karina sustained multiple injuries and miscarried a pregnancy. The May 27 alteration was not the first time defendant inflicted injuries on Karina. On October 3, 2014, defendant pleaded guilty to domestic battery (bodily harm), based upon a November 29, 2012, incident in which he beat Karina.

¶ 4 Defendant was initially charged on May 30, 2016, in a five-count complaint alleging that he strangled and struck Karina about the head and body. In connection with the criminal complaint, the court granted Karina's petition for an emergency order of protection. On June 30, 2016, defendant agreed to the entry of a plenary order of protection. On August 16, 2016, a Kane County grand jury returned an indictment charging defendant with five separate counts. Count I alleged that defendant committed aggravated domestic battery ( 720 ILCS 5/12-3.3(a-5) (West 2016)), a Class 2 felony, by strangling Karina. Count II alleged that defendant committed aggravated domestic battery (id. § 12-3.3), another Class 2 felony, based on making physical contact of an insulting or provoking nature by strangling Karina. Count III charged defendant with aggravated domestic battery (id. § 12-3.3(a)), a Class 2 felony, alleging that defendant caused great bodily harm by striking Karina and causing her to miscarry. Count IV alleged domestic battery (id. § 12-3.2(a)(1)), a Class 4 felony. Finally, count V charged defendant with domestic battery (id. § 12-3.2(a)(2)) for contact of an insulting or provoking nature.

¶ 5 Prior to trial, the trial court granted the State's motion in limine to introduce defendant's 2014 domestic battery conviction to establish defendant's propensity and modus operandi . 725 ILCS 5/115-7.4(a) (West 2016). The trial court also granted the State's motion in limine to admit a recording of defendant's telephone call from the Kane County jail, in which he discussed the confrontation with Karina. However, the court ordered that four lines of the call's transcript be redacted because they would have disclosed to the jury that the call was made from the jail and the court did not want the jury to "find [defendant] guilty just because [the call] was coming from the jail." The trial court granted defendant's motion to exclude evidence that there was an order of protection issued in conjunction with the case.

¶ 6 The trial commenced on March 6, 2017. Karina, age 24, testified that on May 27, 2016, she lived in an apartment in Carpentersville with A.B. (who was five years old at the time of trial) and defendant. Karina stated that she met defendant when they were in fifth grade and that they dated for nine years.

¶ 7 Karina then described the day of the May 27, 2016, physical altercation. Karina and defendant took A.B. to Belvidere so she could play with her cousins on defendant's side of the family. While in Belvidere, Karina and defendant argued over defendant "adding girls on Facebook." They had similar problems in the past that upset Karina. The argument continued on the car ride home. Defendant "wasn't really responding" to Karina because he did not wish to argue in front of A.B. At that point, the argument consisted of "all words." Instead of going directly home, they stopped at the home of one of defendant's friends. While there, defendant again "started to add more girls on Facebook," which upset Karina again. Karina told defendant she wanted to leave.

¶ 8 Karina drove back to her apartment, which took only about a minute. During the trip, she and defendant continued to argue. When they arrived at Karina's apartment, Karina told defendant that she wanted defendant to leave, telling him to "just get your stuff and get out." Defendant began to exit the car while it was still moving in reverse. Defendant jumped out of the way and hit the ground. Karina asked him why he acted like she hit him, but defendant did not respond. He "grabbed" A.B. out of the back seat and took her inside the apartment. Karina told defendant that she did not want him "to get in the apartment," but he ignored her.

¶ 9 Once inside the apartment, defendant put A.B. to bed. When Karina came out of the bedroom, defendant was lying on the floor in the hallway. Karina told defendant to leave. Defendant got up, grabbed Karina by her forearms, and threw her to the "ground." Karina knew what "was coming" once defendant threw her. Defendant, while punching Karina in the face, told her, "[D]on't you ever f*** do that to me again." Karina tried to punch defendant back, but defendant was on top of her and his knee pinned her right forearm to the ground.

¶ 10 After Karina was able to punch defendant, he got off of her. Defendant began to cry, and Karina went to her room. Defendant told Karina, "[I]f you really want me out, then take me out," before handing Karina a pocketknife. Karina told defendant that she did not want to fight with him anymore. She told him that she just wanted him to leave. Defendant did not leave. When defendant again tried to hand the knife to Karina, she "smacked it out of his hand" and headed for the bathroom. Defendant prevented Karina from closing the bathroom door and spit in her face. Karina told him that she was tired of "always having to fight to get his attention."

¶ 11 They heard a noise that sounded like A.B. fell off the bed, so they stopped fighting and went to check on her. A.B. was fine and still sleeping. Karina told defendant to move out of her way. She pushed his arm away. Defendant said, "[D]on't tell me what I can and cannot do with my kid." Karina responded, "[S]he's not yours, she's mine," because Karina cared for A.B. and "never left her side." At this point, Karina and defendant were whispering so they would not awaken A.B. After they left the bedroom, defendant asked, "[S]he's not mine?" Before Karina could respond, defendant began choking her. At the time, her back was against the wall as defendant's hands were around her neck. Defendant squeezed Karina's neck to the point that she was unable to breathe. Karina pushed her hand into defendant's face. He let go of her neck but pushed her to the floor. Karina's face was to the floor when defendant got on top of her and started punching her again. Defendant climbed off Karina and started crying.

¶ 12 Karina got up off the floor and told defendant that she wanted nothing to do with him anymore and that "he needed to leave." Defendant "got mad" and punched Karina in the stomach, putting "his whole body into that punch." As he punched Karina, defendant said, "[Y]ou didn't want to have my baby, right? You stupid b***, you don't want to have my baby?" Karina knew that something was "not normal." She could not breathe and began to cry. She balled up on the couch. She thought defendant was going to hit her again, but he did not because she "started coughing." Defendant was "even scared" because Karina was coughing up "mucus" with bits that were "coming up red." Although defendant said, "I got to take you to the hospital," Karina had to ultimately beg him to take her there.

¶ 13 On the way to the hospital, defendant kept asking Karina what she was "going to tell them." Karina said that she would tell them "nothing," just that she "can't breathe." Defendant remained at Karina's side the whole time she was at the hospital, except for when she was having an ultrasound performed. A pregnancy test had come back positive, but no heartbeat was detected during the ultrasound.

Karina did not tell the nurse what had happened to her because "[h]e was right there." Karina was very upset about not hearing a heartbeat and just wanted to go home. She went home with defendant.

¶ 14 The next day, Saturday, Karina was in pain and "couldn't really do much." Defendant cared for A.B. while Karina "was just kind of laying down the whole time." She started bleeding and cried. She showed defendant, and "he was like, we just have to hope."

¶ 15 On Sunday, Karina was still experiencing stomach pains and returned to the hospital. A friend had to drive her there because defendant was not at home and had the car. Karina and her friend took A.B. with them to the hospital. Before leaving, Karina's friend commented that Karina appeared pale. Karina told her friend that her "contractions" were worse. While Karina "called him and texted him all day," defendant did not return to the apartment, claiming that he would come back "soon or not yet."

¶ 16 At the hospital, a physician told Karina that her "pregnancy count was very low" and that she was going to prescribe "some medicine" for her. Karina cried because she "knew what that meant *** that there is no more baby." At that point, a physician asked Karina about what really happened to her, and Karina told her of the altercation. Karina spoke to a counselor and a police officer while at the hospital....