People v. Calderon

• Decision Date: 29 June 2009
• Docket Number: No. 1-07-2756.,1-07-2756.
• Citation: 911 N.E.2d 1115
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nelson CALDERON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

911 N.E.2d 1115

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nelson CALDERON, Defendant-Appellant.

No. 1-07-2756.

Appellate Court of Illinois, First District, First Division.

June 29, 2009.

Rehearing Denied August 21, 2009.

Jennifer L. Bontrager, Patricia Unsinn, Michael J. Pelletier, State Appellate Defender

Office of the State Appellate Defender, Chicago, IL, for Defendant-Appellant.

James E. Fitzgerald, Marie Q. Czech, Anthony Kenney, Anita Alvarez, State's Attorney, Chicago, IL, for Plaintiff-Appellee.

Justice GARCIA delivered the opinion of the court.

Following a jury trial, Nelson Calderon was convicted of aggravated kidnaping, residential burglary, and two counts of robbery. He received a mandatory sentence of natural life for aggravated kidnaping pursuant to the Habitual Criminal Act (720 ILCS 5/33B-1 et seq. (West 2006)), with concurrent sentences of 30 years for residential burglary and 14 years extended terms for each robbery conviction. The defendant challenges his aggravated kidnaping conviction, claiming that as a matter of law, the evidence fails to prove beyond a reasonable doubt that he intended to secretly confine the kidnaping victim. He also contends he is entitled to a new trial based on two errors by the trial court: its decision to defer ruling on his motion in limine to bar his prior convictions until after he testified and instructing the jury on a lesser-included offense without confirming that defense counsel discussed this instruction with the defendant. Finally, he challenges his extended-term sentences and claims that the sentencing order contains numerous errors. We affirm his conviction but remand for resentencing.

BACKGROUND

The defendant was charged by indictment with five counts: (1) the aggravated kidnaping of David Vasquez for the purpose of obtaining a ransom; (2) the aggravated kidnaping of David Vasquez based on the commission of a robbery against him; (3) the robbery of Moises Guzman; (4) the robbery of David Vasquez; and (5) the residential burglary of Moises Guzman's dwelling. The State nolled the first count and the matter proceeded to a jury trial on the remaining four counts.

Prior to jury selection, the defendant filed a motion in limine seeking to bar the admission of his prior convictions for impeachment purposes in the event he chose to testify. The trial court reserved ruling on the motion until the defendant actually testified.

At trial, the State outlined a bizarre series of events that occurred on June 21, 2002, culminating with the defendant taking jewelry and money from Vasquez and money from Guzman. Vasquez and Guzman had identified the defendant as the offender in a lineup on November 1, 2002. Defense counsel's opening argument set forth misidentification as the defense theory.

David Vasquez testified that he drove a friend's car to a gas station at Archer Avenue and 47th Street to purchase cigarettes. When Vasquez returned to the car, the defendant, whom he had never seen before, was sitting in the passenger's seat. Vasquez told the defendant to get out. The defendant refused and told Vasquez to get in the car or else the defendant's friends in a nearby black Suburban sports utility vehicle (SUV) would beat him. Vasquez did as he was told and entered the driver's side of the car.

The defendant told Vasquez that the defendant and his friends believed Vasquez was in a gang of undocumented immigrants known as "Brazeros." The defendant explained that the Brazeros had stolen money from the defendant and his friends. Because the stolen money had been marked in a special way, the defendant asked to see Vasquez's money. Vasquez told the defendant he did not belong to a gang, but handed over the $150 he was carrying. After ascertaining the money was not marked, the defendant returned it to Vasquez.

The defendant and Vasquez remained in the car in front of the gas station for what Vasquez described as "an hour and a half or two," until the defendant told Vasquez to drive to a specific three-flat building near 55th Street and Lawndale Avenue. Vasquez previously lived in an apartment in that building, and his friend, Moises Guzman, lived there at the time with another person. Because he was scared, Vasquez did as he was told. The black SUV followed.

After arriving at Guzman's building, Vasquez and the defendant knocked on the door to Guzman's apartment. Guzman answered and allowed Vasquez and the defendant to enter. The defendant related the story about the Brazeros and asked Guzman for his money. Guzman gave him the money he had on him, which the defendant kept. The defendant threatened Guzman that he and his friends would beat Guzman if Guzman failed to turn over more money. Guzman went to a safe in the apartment, but it contained no money. Guzman remembered he had more money in a shirt pocket and gave it to the defendant.

The defendant and Vasquez left the apartment. Outside, the defendant began walking away from Vasquez toward the SUV. The defendant stopped, returned to Vasquez, and ordered Vasquez to give him his money and the jewelry he was wearing. Vasquez complied, and the defendant entered the SUV, which drove off.

On cross-examination, Vasquez acknowledged that he parked the car he was driving near the gas station's entry, with its glass doors and numerous windows. Vasquez also acknowledged the car's windows were clear, the initial encounter occurred at approximately 4 p.m., during daylight hours, other people were in and around the gas station, and there was a lot of traffic at the intersection of Archer Avenue and 47th Street, where the gas station was located. Vasquez explained he did not try to reenter the gas station or flag down a passerby for help because he was afraid of the defendant's friends in the nearby SUV. Vasquez also acknowledged that he never saw the defendant with a gun or knife, but believed the defendant had a weapon because the defendant kept one hand in his pocket during the entire time they were in the car.

Moises Guzman provided testimony consistent with the testimony from Vasquez regarding the defendant's actions while in Guzman's apartment.

The parties stipulated that "the immigration status for Mr. David Vasquez and Mr. Moises Guzman is illegal" and that "at no time were there any threats or promises made to them by the police [or] by the [S]tate's [A]ttorney's office in exchange for the testimony here today or their statements to the police."

Defense counsel challenged the State's case in several ways. First, counsel challenged Vasquez's description during cross-examination to contest that a kidnaping occurred. Second, defense counsel highlighted the confusing nature of the case by eliciting from the investigating officer that his initial report regarding the events in Guzman's apartment indicated that Vasquez was a co-offender, rather than a victim. The officer explained that after interviewing Vasquez, he was able to determine that Vasquez was in fact a victim. Third, defense counsel challenged the reliability of the identification of the defendant by Vasquez and Guzman at the lineup. Counsel intimated that the defendant was identified by the victims because he was the only participant who wore a hairstyle similar to that attributed to the offender—a shaved head with a "tail."

The defendant did not testify.

After the close of evidence, defense counsel tendered instructions on unlawful restraint, in accordance with Illinois Pattern Jury Instructions, Criminal, Nos. 8.06 and 8.07 (4th ed.2000), as a lesser-included offense of aggravated kidnaping. In counsel's view, the evidence failed to show Vasquez had been "secretly confined," which he contended was an element of the charged offense of aggravated kidnaping, but conceded the evidence "[did] support the lesser-included offense [of] unlawful restraint." The court instructed the jury on the lesser offense.

During deliberations, the jury sent out a note requesting definitions of the terms "detain," "confine," and "secretly." The court responded that the jurors had all the instructions in the case and asked that they continue to deliberate. The jury returned a guilty verdict on all four charges pursued at trial: aggravated kidnaping based on the robbery of Vasquez, robbery of Moises Guzman, robbery of Vasquez, and residential burglary. The court entered judgment on the verdict. Based on his background, the defendant was sentenced to a mandatory term of natural life for aggravated kidnaping under the Habitual Criminal Act (720 ILCS 5/33B-1 et seq. (West 2006)), with a concurrent 30-year sentence for residential burglary and a concurrent 14-year extended-term sentence for each robbery conviction. This timely appeal followed.

ANALYSIS

The defendant raises five issues on appeal: (1) the State failed to prove beyond a reasonable doubt that he committed aggravated kidnaping because there was no evidence that the defendant "secretly confined" the victim¹; (2) he is entitled to a new trial based on the supreme court's decision in People v. Patrick, 233 Ill.2d 62, 330 Ill.Dec. 149, 908 N.E.2d 1 (2009), because the trial court refused to rule on his pretrial motion in limine to bar impeachment evidence until he testified; (3) he is entitled to a new trial because the trial court failed to address, in the defendant's presence, defense counsel's request that the jury be instructed on the lesser-included offense of unlawful restraint; (4) the trial court erred when it imposed extended-term-sentences on his robbery convictions, requiring a new sentencing hearing; and (5) a new sentencing hearing is required because the mittimus contains numerous errors.

Sufficiency of the Evidence

When a defendant challenges the sufficiency of the evidence to prove his or her guilt, the issue on appeal is "`whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the...