People v. Lozano

• Citation: 2017 IL App (1st) 142723,75 N.E.3d 491
• Decision Date: 31 March 2017
• Docket Number: No. 1-14-2723,1-14-2723
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gilbert LOZANO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 142723
75 N.E.3d 491

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Gilbert LOZANO, Defendant-Appellant.

No. 1-14-2723

Appellate Court of Illinois, First District, FIFTH DIVISION.

March 31, 2017

Michael J. Pelletier, Patricia Mysza, and Christofer R. Bendik, of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Matthew Connors, and Brenda K. Gibbs, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Following a jury trial in the circuit court of Cook County, defendant Gilbert Lozano was convicted of unlawful possession of a firearm by a street gang member (720 ILCS 5/24-1.8(a)(1) (West 2010)) and aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2010)), predicated on defendant not possessing a valid Firearm Owner's Identification (FOID) card. Defendant appeals his conviction, asserting the evidence was insufficient to find him guilty beyond a reasonable doubt where the State failed to present evidence that established he was a member of a "street gang" as provided by the statutory definition. According to defendant, section 24-1.8(c) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.8(c) (West 2010)) explicitly provides that, for the purposes of this section, street gang "has the meaning ascribed to it in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act." The Illinois Streetgang Terrorism Omnibus Prevention Act (Act) (740 ILCS 147/10 (West 2010) ), in turn, provides that the definition of a street gang means "any combination, confederation, alliance, network, conspiracy, understanding, or other similar conjoining, in law or in fact, of 3 or more persons with an established hierarchy that, through its membership or through the agency of any member engages in a course or pattern of criminal activity." Defendant maintains that the State failed to present any evidence that the street gang he was alleged to be a member of "engages in a course or pattern of criminal activity" as defined by the Act, i.e. "2 or more gang-related criminal offenses committed in whole or in part within this State when: (1) at least one such offense was committed after the effective date of this Act [Jan. 1, 1993]; (2) both offenses were committed within 5 years of each other; and (3) at least one offense involved the solicitation to commit, conspiracy to commit, attempt to commit, or commission of any offense defined as a felony or forcible felony under the Criminal Code of 1961." Id. For the reasons that follow, we agree and reverse defendant's conviction for unlawful possession of a firearm by a street gang member.

¶ 2 BACKGROUND

¶ 3 On September 15, 2011, defendant was charged by information with one count of unlawful possession of a firearm by a street gang member and six counts of AUUW. The matter proceeded to a jury trial on count one (unlawful possession of a firearm by a street gang member) and

75 N.E.3d 493

count three (AUUW predicated on defendant not having a valid FOID card).

¶ 4 Chicago police officer Victor Rivera (Rivera) testified that, on August 30, 2011, he and his partner Officer Daniel Lopez (Lopez) were assigned to the area of the 6100 block of South Keeler Avenue in the 8th District. As he was patrolling the area in his unmarked police vehicle, he was flagged down by a concerned citizen. As a result of this conversation, Rivera and Lopez began touring the nearby area of 61st Street and Karlov Avenue. When they arrived at 8:47 p.m., Rivera observed two Latinos and one Latina walking northbound on Karlov Avenue from 62nd Street. Rivera identified defendant in court as one of the Hispanic men he observed. Rivera recognized defendant, as he was an individual he had spoken to "several times in the past." But, as Rivera exited the vehicle, defendant immediately fled north on Karlov Avenue and then proceeded west on 61st Street. Rivera gave chase on foot.

¶ 5 Rivera and Lopez testified that, as defendant ran, he was holding the right side of his pants. Defendant proceeded to flee into a residential alley west of Karlov Avenue. According to Rivera, defendant began to slow down "[a]nd with his right hand that was holding the right side of his waistband, he reached in and tossed with his right hand a black firearm over to the right area of where we were running." Rivera observed defendant throw the firearm over a fence and into a yard, but did not observe the weapon land on the ground. Lopez testified that, from his vehicle, he observed defendant make a throwing motion with his right arm, but did not observe anything leave defendant's hand. According to Rivera, after defendant threw the weapon "[h]e slowed down and pretty much gave up, laid on the ground." Rivera then placed defendant in custody.

¶ 6 Shortly thereafter, Lopez arrived at the scene in his police vehicle. Rivera informed him where the firearm was located. The owner of the property where the weapon appeared to have landed provided Lopez access to the yard so he could retrieve the handgun. Lopez retrieved a black handgun, which he testified was in plain view laying in the grass. Lopez returned to Rivera with the firearm, which Rivera recognized as the same one he observed defendant throw away. The firearm was loaded with one 9 mm bullet in the chamber and five live rounds in the magazine.

¶ 7 Lopez and Rivera drove defendant to the police station, where he was provided with the Miranda warnings. After waiving his rights, defendant informed Rivera and Lopez that he had the weapon due to the fact that, "The Latin Kings shot at him a few days prior so he needed a gun for protection." Rivera asked defendant if he was still a Two-Six member, and defendant replied, "yes" and indicated he had been a member for "several years." Defendant informed Rivera and Lopez that he was a member of the "63rd and Hamlin" faction of Two-Six.

¶ 8 Rivera testified that during the booking process, he observed a tattoo on defendant's right middle finger that consisted of three dots. Rivera testified that he had observed similar tattoos before and that they were worn by Two-Six gang members "to respect their gang." A photograph of defendant's tattoo as it appeared on August 30, 2011, was admitted into evidence. Another photograph of defendant making a gang symbol, which Lopez testified represented Two-Six, was also admitted into evidence. According to Rivera, defendant made this signal "on his own," but Rivera was not present when the photograph was taken.

75 N.E.3d 494

¶ 9 Officer James Vins (Vins) of the Chicago Police Department, currently assigned to the Bureau of Organized Crime Gang Investigations Division, testified as an expert in street gangs with an emphasis in Latino street gangs—including the Satin Disciples, the Two-Six, and the Latin Kings—without objection.

¶ 10 Vins testified that Two-Six is divided into geographic factions, which includes a faction known as "63rd and Hamlin" (referring to the area of 63rd Street and South Hamlin Avenue) in the Chicago Police Department's 8th District. According to Vins, Two-Six has a well-structured hierarchy that is "almost like a corporation." There is a nation chief, treasurer, enforcer, counsel, and a board of high ranking members. Underneath them are five regions, each with its own regional chief, enforcer, and treasurer. Below the regions are the chapters which also consist of a chief, a number two chief, an enforcer, and a treasurer.

¶ 11 According to Vins, the main rivals of Two-Six are the Latin Kings, and the conflict between them "goes back to the mid 70s starting out in the Little Village area." Vins testified that Two-Six uses violence to control their territory, including "murder, shootings, intimidation, arson, anything they could possibly think of to attack rival gang members."

¶ 12 Vins further testified regarding how members of Two-Six identify themselves. Tattoos specific to Two-Six include the "three dots" and the "bunny head," which are typically located on the right side of the body. The Two-Six "gang sign" is "the bunny," which involves, in part, having one's middle finger extended outwards. The colors of Two-Six are beige and black.

¶ 13 In reviewing the reports and photographs associated with this incident, Vins observed that defendant had a "three dots" tattoo on his right middle finger and that defendant was "throwing up a 26 sign for his booking photo." Vins further noted that defendant was arrested in Two-Six territory, which was within a few blocks of Latin Kings territory. Vins opined that when defendant was arrested on August 30, 2011, defendant was a member of the Two-Six street gang.

¶ 14 On cross-examination, Vins testified that he relied on defendant's statements to the police on the day of his arrest as well as the computer database (the Chicago Police Department data warehouse system) for his opinion that defendant was a member of Two-Six. Vins further testified that he could only provide the name of one Two-Six member due to the fact the organization was being restructured. Vins also could not provide an exact number of members in the "63rd and Hamlin" faction of Two-Six.

¶ 15 Without objection, the State admitted into evidence a certified document from Master Sergeant Anthony McClure of the Firearms Services Bureau of the Illinois State Police, which stated defendant had never been issued a FOID card as of June 15, 2012. The State then rested.

¶ 16 Defendant testified as follows. At the age of 15, he commenced being a Two-Six member, which he testified involved going to batting cages, playing basketball, bowling, and frequenting McDonalds with friends. On August 30, 2011, he was not a gang member as three weeks prior he voluntarily had quit associating with Two-Six because he had heard about "ongoing violence" and "wanted to get out * * * as quickly as possible."

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