People v. De Oca

• Citation: 238 Ill.App.3d 362,606 N.E.2d 332
• Decision Date: 12 November 1992
• Docket Number: No. 1-91-1165,1-91-1165
• Parties: , 179 Ill.Dec. 500 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Enrique Montes DE OCA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 332

606 N.E.2d 332

238 Ill.App.3d 362, 179 Ill.Dec. 500

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Enrique Montes DE OCA, Defendant-Appellant.

No. 1-91-1165.

Appellate Court of Illinois First District, Third Division.

Nov. 12, 1992.

Rehearing Denied Dec. 3, 1992.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Barbara Jones, and Michael Falagario, of counsel), for plaintiff-appellee.

Rita A. Fry, Public Defender of Cook County, Chicago (Tina Liebling, of counsel), for defendant-appellant.

Presiding Justice GREIMAN delivered the opinion of the court:

Defendant, Enrique Montes De Oca, was convicted of second degree murder after he admitted that he shot and killed Roberto Delgadello but claimed that he acted in self-defense. The trial court imposed a sentence of 15 years' imprisonment which is the maximum term allowed for an adult convicted of second-degree murder.

On appeal, defendant raises five issues regarding whether: (1) the trial court's finding that defendant was the initial aggressor was manifestly erroneous; (2) the State disproved defendant's assertion of self-defense beyond a reasonable doubt; (3) the trial court improperly placed the burden on defendant to prove his innocence; (4) the trial court properly prohibited defendant from testifying as to the contents of his prior statement to the police; and (5) the Illinois murder statute is constitutional.

Defendant also correctly asserted, and the State agreed, that the trial court improperly sentenced defendant as an adult. Defendant was 15 years old at the time of the crime and was charged with first degree murder. Pursuant to the automatic transfer provision in the Juvenile Court Act (Ill.Rev.Stat.1989, ch. 37, par. 805-4(6)(a)), defendant was properly prosecuted as an adult. After a bench trial, defendant was found guilty of first degree murder but on a motion to reconsider, his conviction was reduced to second degree murder. A minor must be sentenced under the terms of the Juvenile Court Act where the minor is prosecuted as adult but is not convicted of an offense designated in the automatic transfer provision. (Ill.Rev.Stat.1989, ch. 37, par. 805-4(6)(c).) Since second degree murder is not included in the automatic transfer provision, defendant should have been sentenced as a juvenile.

Following oral argument in this case, this court entered an order sua sponte that severed the issue of the improper sentencing of defendant from this appeal, remanded to the circuit court for an expedited resentencing hearing in accordance with the Juvenile Court Act, and directed the circuit court, in resentencing defendant, to grant him credit for time served or in custody.

As to the remaining issues on appeal, we affirm the defendant's conviction and find that the Illinois murder statute is constitutional.

At trial, the State presented three witnesses: police officer Scott Slavin; Jaime Alvarez who was a friend of defendant and an occurrence witness; and Jesus Delgadello who was the cousin of the victim and also an occurrence witness.

The defense presented three witnesses: defendant, Ramon Garcia who was a friend of defendant and an occurrence witness, and Hector Oliva who was a spectator, not a participant in the incident.

Although the testimony was conflicting as to some specific details, all witnesses agreed on the events which resulted in the shooting at issue. Defendant, together with four other young men (Alvarez, Garcia, Jesus Avila and Carlos Castillo) were on the front porch of Carlos Castillo's house. Roberto (the victim) and Jesus Delgadello (the victim's cousin), accompanied by several other young men, approached the Castillo porch. Jesus Delgadello, by his own testimony, went with his companions to the Castillo porch to provoke a fight.

Thereafter, Jesus Delgadello engaged in a fistfight with Jesus Avila. The fistfight began in front of the Castillo house and continued while the crowd moved to the corner of the block. The "crowd" numbered between 10 and 30 persons according to the various testimony. After the crowd assembled at the corner, defendant somehow come into possession of a shotgun, then shot and killed Roberto Delgadello. Following the shooting, defendant fled and was eventually apprehended in California. Officer Slavin testified that he arrived at the scene approximately 30 seconds after the shooting and that no weapons were ever recovered.

As a witness for the State, Jaime Alvarez, a friend of Jesus Avila, testified that when the crowd was at the corner, the victim acted in a threatening manner by showing the handle of a gun which was in his waist band. Defendant, with a shotgun, then appeared behind Alvarez, waved a shotgun around, and ordered everyone to "get away." Jesus Delgadello put his hands in front of defendant and attempted to calm him. The victim then reached for his waist and defendant shot him. While defendant was yelling and waving the shotgun, the victim said nothing nor did he draw a gun from his belt.

Alvarez further testified that while the fistfight was going on, the victim made threats in general, not to a specific individual, but defendant was not present when the victim made the verbal threats and showed his gun. However, Alvarez acknowledged that he was not in a position to see where defendant came from or what defendant saw and heard.

Jesus Delgadello testified that he saw defendant carrying a gun as defendant walked on the sidewalk from the Castillo house to the corner. The fistfight stopped because defendant then waved the weapon and ordered the crowd "to back up." Defendant pointed the gun at Jesus Delgadello and Jesus asked him several times to put down the gun. Jesus Delgadello did not see a weapon in the victim's possession that night and did not hear the victim threaten defendant.

Defendant testified that during the fistfight between Jesus Delgadello and Avila, the other members of the crowd "were kind of loud and started calling out names" during which time the victim was "arguing and threatening people * * * saying that we were all next." Defendant followed the fight to the corner but stated that he was unarmed. At the corner, defendant heard someone yell "go get a gun" and the victim "ran towards a vehicle." Defendant stated that he was frightened when he saw the victim go toward the car. When the victim returned to the crowd, the fistfight had ended but the groups continued to argue verbally. Defendant claimed that he saw the victim "pulling out a gun * * * from his waist band" and heard the victim say "I am going to kill you." Defendant then picked up a shotgun which was inexplicably laying by a tree and shot the victim. Defendant testified that he did not know who owned the gun or who put the gun by the tree.

During cross-examination, defendant testified that the victim did not say anything to him when the victim came to the corner from the car but that defendant told the people in the crowd to "step back" and "get out of here." After the shooting, defendant dropped the gun and fled.

As a witness for the defense, Ramon Garcia testified that he was on the Castillo porch with defendant when the Delgadellos arrived. As the fight moved toward the corner, Garcia heard someone yell "take out the gun" and then saw the victim run to a car but did not see what, if anything, the victim took out of the car. The victim returned to the crowd and stood in front of defendant. Garcia stated that he saw the victim pointing a gun at defendant and until the shooting, did not know that defendant had a gun.

Hector Oliva testified that he lived across the street from the Castillo house and he saw more than 20 people assemble at the Castillo house on the evening of the shooting. When he saw two individuals begin to fight, Oliva went to his porch and watched. Oliva heard someone yell "get the gun in" and then saw a person, later identified as the victim, run to a van and return with his hand under his shirt. Oliva saw an unidentifiable object in the victim's hand before the shooting.

On appeal, defendant first asserts that the trial judge erred in finding that defendant was the initial aggressor.

The trial court found that defendant's testimony was "selective and evasive" and expressly rejected his version of how the gun appeared at the scene. The trial court stated "[t]here's no way in the world that this Court believes the testimony of the defendant that the gun was situated or laying by the tree in an incidental drop by someone." After reviewing all the testimony and noting the contradictions, the court found defendant to be the initial aggressor, reasoning that the incident was "a classic situation where the initial aggressor bringing the gun accelerated the situation. If it had not been brought to the scene by [defendant] at that point perhaps what occurred would not have occurred."

The issue of self-defense is always a question of fact determined by the trier of fact. (People v. Felella (1989), 131 Ill.2d 525, 534, 137 Ill.Dec. 547, 546 N.E.2d 492; People v. Price (1987), 158 Ill.App.3d 921, 926, 110 Ill.Dec. 781, 511 N.E.2d 958.) Specifically, whether the defendant was the initial aggressor, i.e., the one who provoked the fatal confrontation, is a question of fact to be decided by the trier of fact. (People v. Smith (1990), 195 Ill.App.3d 878, 882, 142 Ill. Dec. 320, 552 N.E.2d 1061.) Since the testimony of the occurrence witnesses varied somewhat in the present case, the trial judge, as the trier of fact in a bench trial, must weigh the credibility of the witnesses, draw reasonable inferences from their testimony, and resolve conflicts in the evidence. (Felella, 131 Ill.2d at 534, 137 Ill.Dec. 547, 546 N.E.2d 492.) Unless the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt of the defendant's guilt, the trier of fact's determination will not be disturbed on appeal. Felella, 131 Ill.2d at 533-34, ...