People v. HUGO G.
| Decision Date | 11 May 2001 |
| Docket Number | No. 1-99-3722.,1-99-3722. |
| Citation | 322 Ill. App.3d 727,750 N.E.2d 247,255 Ill.Dec. 666 |
| Parties | The PEOPLE of the State of Illinois, Petitioner-Appellee, v. HUGO G., Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
Rita A. Fry, Public Defender of Cook County, Chicago (Assistant Public Defender Eileen T. Pahl of counsel), for Appellant.
Richard A. Devine, State's Attorney of Cook County, Chicago (Assistant State's Attorney Renee Goldfarb and Latisha Foster, of counsel), for Appellee.
Respondent, Hugo G., a minor, was adjudicated a delinquent for committing armed robbery and two counts of battery. He was sentenced to 4 years' probation, 60 days in the juvenile detention center and 100 hours of community service. The court also imposed the following conditions of probation pursuant to the Juvenile Court Act of 1987 (705 ILCS 405/5-715 (West Supp.1999)): (1) TASC and Interventions counseling; (2) no loitering between 27th Street and Kedvale and 28th Street and Kedvale; (3) no association with gang members; and (4) a 7 p.m. curfew.
On appeal, respondent contends that: 1) the petition for adjudication of wardship was defective where it failed to contain an allegation regarding where the offense occurred; 2) the evidence at trial failed to prove beyond a reasonable doubt that the offense occurred in the State of Illinois; 3) the State failed to prove beyond a reasonable doubt that respondent was adjudicated delinquent for committing armed robbery and battery under an accountability theory; and 4) the trial court abused its discretion by imposing certain restrictive conditions of probation. For the reasons that follow, we affirm.
The following facts were adduced at respondent's adjudication hearing. On June 14, 1999, at approximately 3 p.m., Juan Gonzalez was with his family eating at a restaurant on 26th Street. Gonzalez could not recall the name or exact address of the restaurant. Gonzalez was never asked in what city or town the restaurant was located. While eating, Gonzalez noticed two men staring at him. Gonzalez testified that he thought they were staring at the chain around his neck. Once Gonzalez and his family finished their meal and left the restaurant, they entered their vehicle. While he was inside the car, Gonzalez saw a group of four to six people walking toward the vehicle. Gonzalez identified respondent as one of the individuals he saw at that time. Gonzalez testified that he saw one of the individuals flash a gang sign. One of the individuals, whom Gonzalez could not identify, threw a beer bottle at the car window. After the bottle was thrown, the men approached Gonzalez and his family. Gonzalez testified that when he got out of the car to protect his family from harm, the individuals began to hit him with bottles and sticks. Gonzalez specifically recalled that respondent hit him with a stick. Upon seeing her husband being attacked, Gonzalez's wife, Nolenoila Baldonis, attempted to help him, but she was hit also. The attack lasted approximately three or four minutes. Gonzalez testified that during the attack, his gold chain, bracelet and watch were stolen. Gonzalez was unable to identify who took the items from him. When the police arrived, the individuals fled, but respondent, who was 14 at the time, and another individual, were apprehended at the scene.
On cross-examination, Gonzalez testified that respondent hit him with a bottle rather than a stick. Gonzalez further testified that he told the police that an individual named Roger threw a bottle at him. Gonzalez testified that everything happened very fast and that there was a lot of excitement. Gonzalez then testified that he saw respondent throw a bottle but did not know whether he hit him with it.
Gonzalez's wife, Nolenoila Baldonis, testified that she was with her husband and children at a restaurant on 26th Street. Baldonis, like Gonzalez, could not recall the name or exact address of the restaurant and did not testify as to the town or city. After eating, they entered the car to leave. Baldonis testified that before she closed the car door, she heard glass fall. She got down and then realized that someone had thrown a bottle at the back of the car. Baldonis did not see who threw the bottle. Baldonis testified that when Gonzalez got out of the car, he was attacked by four to six individuals. Baldonis identified respondent as one of the individuals present at the scene and testified as follows:
A. There were like (6) or (4), (5) or (6). I'm not sure.
When Baldonis got out the car in an attempt to defend her husband, she was also attacked. Baldonis testified that the attackers stole her wallet, which contained $500.
On cross-examination, Baldonis testified that Gonzalez was not hit with a baseball bat, but with something similar to a police officer's nightstick. Baldonis further testified that everything happened so fast that she did not recognize any of the faces of the individuals involved in the attack.
Following the close of evidence, the court adjudicated respondent delinquent for committing two counts of armed robbery and two counts of battery. In so finding, the court ruled that respondent was identified by both witnesses as one of the individuals involved in the attack. The court also found the testimony of Gonzalez and Baldonis to be credible.
At the sentencing hearing, respondent's probation officer recommended that respondent return to custody for TASC and Interventions counseling. The probation officer made this recommendation because he was informed by respondent's mother that respondent's friends were often at her house allegedly drinking and smoking marijuana with respondent. The probation officer also visited respondent's home during school hours and found him with other minors who were alleged gang members. Defense counsel argued that counselors from the YMCA also had been to the home and did not witness any drinking or smoking and that they had been trying to get respondent enrolled in school.
Following respondent's referral to TASC and Interventions counseling, respondent returned to court for sentencing. During the sentencing hearing, respondent's counsel made a motion for a new trial or, in the alternative, a motion for reconsideration and argued that the testimony of Gonzalez and Baldonis was inconsistent. Defense counsel also argued that because Baldonis testified that she did not see respondent do anything, the evidence was insufficient to find respondent guilty. The trial court denied the motion.
Respondent's probation officer testified that respondent's mother requested a curfew for her son. The probation officer further recommended that respondent be barred from loitering on the corners of 27th Street and Kedvale or 28th Street and Kedvale because these areas are known hangouts for the Two Six Gang. The trial court then imposed the following conditions of probation:
The order containing the specifications of the sentence of probation phrased the geographical limitation as prohibiting "loitering" on the corners of 27th and 28th and Kedvale.
The court also imposed a 7 p.m. curfew which would remain in effect until the probation officer indicated it was no longer necessary. The trial court scheduled a progress report for November 17, 1999, which was not made a part of the record on appeal. Respondent's timely appeal followed.
Respondent first contends that the petition for adjudication of wardship is fundamentally defective because it fails to contain an allegation of where the offense occurred. The State responds that respondent is actually making an argument as to venue. As respondent failed to address venue prior to the appeal, the State asserts that he has waived his opportunity to be heard on the issue. Notwithstanding waiver, the State argues that the petition for adjudication satisfied the statutory requirements.
Respondent bases his contention upon section 111-3 of the Code of Criminal Procedure of 1963 (Code), which requires that a charging instrument must set forth, inter alia, "the date and county of the offense as definitely as can be done." 725 ILCS 5/111-3(a)(4) (West 1996). Although respondent concedes that our supreme court, in In re S.R.H., 96 Ill.2d 138, 143, 70 Ill.Dec. 255, 449 N.E.2d 129 (1983), held that section 111-3 of the Code does not apply to juvenile proceedings, he nevertheless asserts that the continued validity of this holding is questionable in light of section 5-101(3) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-101(3) (West 1999)). Section 5-101(3) of the Act states as follows:
The State, on the other hand, asserts that respondent's contention concerns a question of venue rather than the sufficiency of the petition. The State claims that because any objection to venue...
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