People v. Guzman

• Decision Date: 31 December 1990
• Docket Number: No. 1-85-2147,1-85-2147
• Citation: 567 N.E.2d 500,208 Ill.App.3d 525
• Parties: , 153 Ill.Dec. 542 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Fernando GUZMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 500

567 N.E.2d 500

208 Ill.App.3d 525, 153 Ill.Dec. 542

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Fernando GUZMAN, Defendant-Appellant.

No. 1-85-2147.

Appellate Court of Illinois First District, First Division.

Dec. 31, 1990.

Public Defender of Cook County, Chicago (Randolph N. Stone, Sharon M. Shapiro and Aaron L. Meyers, of counsel), for defendant-appellant.

State's Atty. of Cook County, Chicago, (Jack O'Malley, Inge Fryklund, Marie Quinlivan Czech and Daniel J. Lynch), for plaintiff-appellee.

Justice MANNING delivered the opinion of the court:

The defendant, Fernando Guzman, was indicted on two counts of attempted murder, six counts of aggravated battery and four counts of armed violence. Following a bench trial, he was convicted of one count of attempted murder, three counts of aggravated battery and one count of armed violence committed against Ricardo Suliveres. He was also convicted of three counts of aggravated battery committed against Moses Suliveres and acquitted of the attempted murder of Moses Suliveres. The defendant was sentenced to serve six years in the Illinois Department of Corrections for the attempted murder and armed violence convictions and a term of three years was imposed on the remaining counts with all sentences to run concurrently.

The defendant appeals these convictions contending that: (1) the conviction for attempted murder must be reversed because the State failed to prove beyond a reasonable doubt that he did not act in self-defense; (2) convictions on six counts of aggravated battery must be vacated where the one physical act of shooting the gun constituted the basis for each of the convictions; (3) the conviction on one count of armed violence must be vacated because it constitutes double enhancement; and (4) he was denied effective assistance of counsel.

The following evidence was adduced at trial. Both Ricardo and Moses Suliveres testified to substantially the same facts. They were visiting friends in the area near 28th Street and Homan Avenue on the date in question. At approximately 12:45 a.m., they left the gathering in separate cars accompanied by some of their friends. Ricardo drove his friend "Munch" home to inform Munch's mother that he was going to spend the night at Ricardo's house. He then drove his friend "Rito" home because Rito was intoxicated. Rito lived directly across the street from a vacant lot known to be the "hang-out" for the Villalobos street gang. After Ricardo assisted Rito to his front door, he returned to his car at which time he noticed defendant and 15 to 25 members of the Villalobos gang approach him while making gang signals. He further observed that defendant was carrying a bottle. Defendant challenged Ricardo to a fight, and an argument ensued. Defendant accused Ricardo, Moses, Munch and their friends of violating the Villalobos nation's neighborhood. During the argument, Raphael, a member of the Villalobos' gang, handed defendant a gun. The defendant then shot Ricardo, who was unarmed. He was shot six times. Moses made an attempt to take the gun from defendant. Defendant then shot Moses in the lower abdomen. Defendant pointed the gun at Munch and pulled the trigger, but the gun failed to discharge. Munch ran away from the scene to his home a half block away. Moses began running on St. Louis Street. However, his friends caught him, took him home, and thereafter, he was taken first to St. Anthony's Hospital and subsequently to Cook County Hospital where he spent a week and a half recuperating from the gun shot wound to his abdomen.

Ricardo drove himself to Cook County Hospital where he spent three days recovering from the six shots in his chest, arm, index finger, hip, penis and thigh. He also spent two weeks at home recovering from his injuries. Munch testified for the State substantially similar to Moses and Ricardo with a few minor differences. All of the State witnesses testified that neither of the two victims was armed with a weapon.

Defendant's testimony and that of Jose and Valentin differed greatly from that of the State's witnesses. Jose and Valentin both testified on defendant's behalf. Both of these witnesses recalled driving with the defendant past the victims at 24th and St. Louis. They stated that the victims and those accompanying the victims gave them prolonged stares as they drove by. They also corroborated defendant's version as to who the initial aggressor was. They both testified that Ricardo initiated a conversation with defendant accusing him of yelling at him or representing. They also both testified that Ricardo shoved defendant, and it was at that time that defendant invited Ricardo to walk to the alley and fight. Defendant's witnesses agreed with the State's witnesses that Ricardo was unarmed but disagreed that Moses was unarmed. They stated that Moses not only wielded a knife, but he approached defendant and threatened to kill him. Jose acknowledged that 10 to 15 individuals, some of whom he recognized as members of the Villalobos gang, were in the vicinity but not in the vacant lot. Defendant stated that he and two friends, Jose Sandoval and Valentin Rivera, were standing outside of Jose's car which was parked in a vacant lot on South St. Louis Avenue, eating pizza and laughing and joking loudly. He and Jose were prior members of the Villalobos street gang, but Valentin was currently a member of that gang. While he conceded that the vacant lot was a hangout for members of the Villalobos gang and that, as a matter of fact, there was a gathering of gang members at that location on the night of the shooting, he denied that he, Jose and Valentin were with them. He explained that they had decided to cruise the neighborhood girl watching, became hungry, purchased pizza and french fries and went to the vacant lot to eat and play around. He claimed they chose that location because it was close to home and they could think of nowhere else to go to eat. As they stood outside the parked car talking loudly with one another, Ricardo Suliveres was passing by, stopped the car he was driving, and confronted them about why they were "representing" towards him. Defendant claims he denied they were "representing" (making gang signals) and then Ricardo pushed him. At that time he responded to the push by inviting Ricardo to a fight in the alley and an argument ensued. He further stated that about then he noticed Ricardo's brother Moses approach him as Moses took a knife out of his pocket. He admits that Ricardo was unarmed. He said Moses came at him with the knife in his hand and threatened to kill him. He became frightened and began backing up, at which time somebody handed him a gun. He began shooting aimlessly at both brothers' legs to "get them off of" him and because he thought they were going to kill him. After the shootings he hid from the police for approximately six weeks, spending one night each with two uncles in Chicago, and approximately six weeks with an uncle in California. The defendant then returned to Chicago and turned himself in to the Chicago police.

Defendant first contends that his convictions should be reversed because the State failed to prove beyond a reasonable doubt that he was not acting in self-defense when he shot Ricardo. A person is justified in using deadly force where the person "reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself * * *." (Ill.Rev.Stat.1987, ch. 38, par. 7-1.) Moreover, when the affirmative defense of self-defense has been raised, the State has the burden of proving beyond a reasonable doubt that the defendant was not acting in self-defense. (Ill.Rev.Stat.1987, ch. 38, par. 3-2(b).) The test to be utilized in making this determination is what a reasonable person under these circumstances would have subjectively believed. (People v. White (1980), 87 Ill.App.3d 321, 42 Ill.Dec. 578, 579, 409 N.E.2d 73, 74; People v. Brumbeloe (1968), 97 Ill.App.2d 370, 240 N.E.2d 150.) When it has been determined that a defendant was initially shooting in self-defense, the State must then prove that a sufficient amount of time had passed between the initial shot and any subsequent shots which would have allowed the defendant, as a reasonable person, to realize that no further shooting was necessary. Brown v. Illinois (1975), 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416; People v. Bailey (1975), 27 Ill.App.3d 128, 326 N.E.2d 550, 555.

The defendant argues that in finding that he was acting in self-defense the trial court properly concluded that he was not guilty of attempted murder of Moses and the testimony revealed that all shots occurred within a matter of seconds. The defendant contends that the State failed to prove that he was not acting in self-defense when the shooting occurred where: two witnesses testified that it was Ricardo who initially confronted Guzman; three witnesses testified that Moses threatened to kill the defendant; Ricardo pushed Guzman who responded by challenging Ricardo to a fight; and Moses approached the defendant with a knife who responded by shooting Ricardo and Moses in fear for his life. The defendant contends that he had reason to believe that Moses and Ricardo were going to kill him since Moses had a knife and they were in such close proximity when he shot them. Moreover, he argues that he was justified in using deadly force to protect himself from both men acting in concert and his response was reasonable under the circumstances. See White, 87 Ill.App.3d 321, 42 Ill.Dec. 578, 409 N.E.2d 73.

The defendant maintains that the fact that Ricardo did not have a weapon does not establish that he was not acting in self-defense. Moreover, the State failed to produce any evidence that a sufficient amount of time had elapsed between the initial shot and subsequent shots which would have allowed the defendant to realize that further shooting was not necessary. Therefore,...