People v. Velasco, 2-12-0254
| Citation | 2013 IL App (2d) 120254 |
| Decision Date | 28 May 2013 |
| Docket Number | No. 2-12-0254,2-12-0254 |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CESAR VELASCO, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Kane County.
¶ 1 Held: The trial court did not abuse its discretion in sentencing defendant to 20 years' imprisonment (on a 6-to-30 range) for attempted first-degree murder: we could not reweigh the mitigating factors, and, given the seriousness of this offense, the deterrence of similarly serious offenses was a valid aggravating factor despite the individualized nature of sentencing decisions.
¶ 2 Defendant, Cesar Velasco, appeals from his sentence of 20 years' imprisonment, imposed upon his conviction of attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2004)). We previously held that the appeal was untimely, and we therefore dismissed it. People v. Velasco, 2013 IL App (2d) 120254-U. However, defendant has obtained a supervisory order from thesupreme court, allowing us to consider the appeal on its merits. Velasco v. Schostok, No. 115823 (Apr. 25, 2013). We now hold that the sentence was within the court's discretion, and we thus affirm.
¶ 4 A grand jury indicted defendant on a count each of attempted first-degree murder, aggravated domestic battery, and aggravated battery. All three counts related to the hammer bludgeoning of Domingo Casarrubias-Barrera, defendant's housemate, which occurred on March 11, 2005. On February 17, 2006, defendant entered a blind guilty plea to the attempted murder count, and the State dismissed the other two charges, conceding that they would merge with the count to which defendant pleaded guilty.
¶ 5 For the factual basis, the State represented that the Elgin police had learned that the victim had suffered severe injuries from three hammer blows to the head. The police interviewed defendant, and he eventually admitted that he had inflicted the injuries. A medical witness would testify that the injuries had created a strong likelihood of death and had caused serious permanent disabilities. Defendant and the victim shared an apartment, and the incident took place in that apartment. Defendant initially told the police that a burglar had attacked the victim, but later he told the police that he had believed that the victim was reaching for a weapon. The police found nothing to suggest that the victim had any kind of weapon at hand. An officer's opinion based on a blood-spatter analysis was most consistent with the victim's having been lying down when defendant struck him.
¶ 6 The sentencing hearing started on July 14, 2006. Dr. Dennis Yung Kwan Wen testified that he had been called to Sherman Hospital on March 11, 2005, because the emergency room doctorconcluded that a neurosurgeon was needed to assess and treat the victim's injuries. The victim was not responsive and was bleeding profusely from multiple head wounds. His blood pressure was barely measurable.
¶ 7 Wen found three open wounds on the victim's head. Wound one was on the top of the head; beneath the visible laceration were multiple fragments of bone. Wound two was in the left forehead area and wound three was in the right temple area. Wound two had brain tissue oozing through the opening, and there were bone fragments. Wound three was bleeding profusely, but did not display obvious brain tissue or bone fragments. The medical staff stabilized the victim's blood pressure by suturing the wounds. He was admitted to the intensive care unit. Over the next three days, he continued to have bleeding and swelling of the brain. However, the openings in the skull acted to decompress the brain.
¶ 8 Wen said that the effects of wounds two and three were essentially those of a frontal lobotomy. The victim had surgery to remove damaged brain tissue and to reconstruct damaged portions of the skull. He was discharged from the hospital after a month and had patent cognitive deficits. The injuries had "completely shredded" the "lining of the brain major [sic]" (perhaps "dura mater") so that the victim was at risk of a cerebrospinal fluid leak even after surgery. Wen had examined the entire body of the victim and did not note any injuries to the hands or arms. He saw the victim for the last time a week after discharge. There remained difficulty with wound closure. Wen expected the victim to have at least some permanent disability. He thought that the victim might be able to function at a level at which simple employment would be possible and that he should be able to perform basic self-care functions. Because the victim returned to his home in Mexico, Wen lost contact with him.
¶ 9 Manuel Castro testified that he came from the same town in Mexico as the victim; the families were neighbors there, and he had known the victim for years. He said that the victim had been a calm and quiet but friendly person with no violent tendencies. He had been in contact with the victim's family after the injuries. The victim was "not functioning properly." He sometimes wandered naked away from his house, so that his wife had to go find him. He was not able to work.
¶ 10 The hearing resumed for a second and final day on August 1, 2006. Detective Richard Ciganek of the Elgin police testified that, on March 11, 2005, the police had received a call concerning an injured person and a possible burglary; Ciganek became the lead investigator on that case. The first officer on the scene entered the apartment, which appeared to have been ransacked, and found the victim lying in a pool of blood in a bedroom. Defendant was present when the first officer arrived. Defendant told officers that, at around 1:30 a.m., he had left the apartment, with the victim alone there, to get some food. He claimed that, when he returned, the victim was as the police saw him. He said that, because he was not sure whether the burglars had left, he had not entered the apartment. He had started knocking on doors of other apartments to get access to a phone, but no one opened a door to him. He then drove across Elgin to his landlord's house. He told the landlord that the victim was injured and that the landlord should go to the apartment. The landlord arrived at the apartment and saw that the victim had serious injuries; he called 911. That call was logged at 4:33 a.m. Defendant's account of events shifted in later interviews.
¶ 11 Defendant's brother, Ruben, told police that he and defendant had gotten off work at 1:30 a.m. and had gone back to the apartment to make dinner.
¶ 12 The police found no sign of forced entry to either the apartment door or the building door. Some neighbors had heard knocking before the police arrived, but had not spoken to anyone.
¶ 13 The police interviewed defendant again when they could show that the times he said he had done various things were incorrect. Defendant said that he had never thought that the original times he had given were exact. At that point, he denied any dispute with the victim.
¶ 14 The police then got a warrant for Ruben to record a conversation with defendant. When confronted with the recording of the conversation, defendant admitted that he had hit the victim with a hammer. He had disposed of the hammer in a restaurant dumpster. Asked about his relationship with the victim, defendant said that the victim was a dangerous person who had shot someone in Mexico. He also claimed that the victim kept "a stick" under his bed; the police did not find a stick. The victim was angry with defendant because defendant had had the phone service to the apartment shut off. They argued; the victim said that defendant was worthless and shoved him. Defendant had "slept with a chair underneath his bedroom door for a couple of days" before this fight because he was afraid of the victim. He thought that the victim might kill him. It was immediately after the argument that defendant hit him.
¶ 15 Officer Steve Bianchi, who had training in blood-spatter analysis, testified that he had been called to the scene to serve as an evidence technician. He noted no damage to doors or locks. In the room into which a person entered, he noticed what he thought were "cast-off patterns" of blood on the ceiling—this was not the room in which his fellow officers had found the victim. He explained that cast-off patterns result when an implement used to inflict injury gets blood on it and spreads the blood in a distinct pattern when the person wielding it swings it again. There was also blood spatter on the wall next to the bed such that Bianchi formed the opinion that the victim had been in bed when struck. He did not think that he was qualified to give an expert opinion, and did not expressgreat certainty about the victim's position. He later clarified that he was quite certain that, based on the marks and the victim's injuries, the victim's head had been near the pillow when it was struck.
¶ 16 Ruben testified on defendant's behalf. Both Ruben and defendant had come to the U.S. to help their family economically. Defendant had worked for a cleaning company. He was a "calm," "hard-working," and "responsible" person whom Ruben had never seen act violently. After his arrest, defendant told Ruben that the victim had been "bothering" him and had threatened to kill both of them. On cross-examination, Ruben admitted that he had not told the police anything about tension between defendant and the victim when they interviewed him. Notably, when Ruben spoke to defendant during the overhear, defendant, despite admitting the battery, did not accede to Ruben's tearful request for an explanation of the crime.
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