People v. Villareal
| Citation | 448 Ill.Dec. 807,2021 IL App (1st) 181817,177 N.E.3d 1158 |
| Decision Date | 03 May 2021 |
| Docket Number | No. 1-18-1817,1-18-1817 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Juan VILLAREAL, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Patricia Mysza, and Deepa Punjabi, of State Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Jon Walters, Assistant State's Attorneys, of counsel), for the People.
¶ 1 In November 2011, defendant Juan Villareal was charged in case No. 11-CR-18625 with a number of offenses, including unlawful possession of a firearm by a street gang member ( 720 ILCS 5/24-1.8 (West 2014) ). While released on bond in this case, defendant was charged in case No. 12-CR-13785 with the offense of aggravated discharge of a firearm (id. § 24-1.2). On April 21, 2014, defendant entered pleas of guilty in both cases to the offenses of unlawful possession of a firearm by a street gang member and aggravated discharge of a weapon. Pursuant to an agreement between the parties, defendant was sentenced to consecutive terms of 4 years’ imprisonment for unlawful possession of a firearm by a streetgang member in case No. 11 CR 18625 and 8 years’ imprisonment for aggravated discharge of a firearm in case No. 12 CR 13785.
¶ 2 On April 9, 2018, defendant filed a petition for postconviction relief, which the trial court dismissed on June 29, 2018, as being "frivolous and patently without merit." On appeal, defendant alleges that the unlawful possession of a firearm statute is unconstitutional because it "impermissibly criminalizes a defendant's status in violation of the Eighth Amendment."1
¶ 4 On October 10, 2011, police stopped defendant in his vehicle after receiving complaints that the vehicle was involved in a neighborhood shooting. Defendant did not have a driver's license, and upon searching his vehicle, police recovered a fully loaded handgun. At the time of the offense, defendant did not have a firearm owner identification (FOID) card and was a member of the Satan Disciples street gang.
¶ 5 On March 5, 2012, defendant and codefendant, Oscar Montes, were driving near West 25th Street in Chicago to locate and shoot a member of the Latin Kings. As they were driving, defendant shot a gun out of the window at Forylan Garcia.2 Montes crashed the vehicle as they attempted to flee from the police. Defendant admitted to throwing a gun out of the window, which was later recovered.
¶ 6 Defendant was charged with unlawful possession of a firearm by a street gang member and aggravated discharge of a firearm. He pled guilty to both offenses and, pursuant to an agreement reached between the parties, was sentenced to a total of 12 years of imprisonment.
¶ 7 On April 9, 2018, defendant filed a pro se postconviction petition, which was dismissed by the trial court as "frivolous and patently without merit." On appeal, defendant challenged the constitutionality of the unlawful possession of a firearm by a street gang member statute on eighth amendment grounds.
¶ 8 On May 29, 2020, we requested that the parties submit supplemental briefing on the applicability of two cases3 from other jurisdictions. Oral argument was held on November 18, 2020, and on November 23, 2020, defendant filed a motion to cite additional authority seeking leave to cite People v. Hobson , 2014 IL App (1st) 110585, 379 Ill.Dec. 948, 7 N.E.3d 786, "for the proposition that a substantive due process challenge is properly before this Court."
¶ 11 Defendant alleges that section 24-1.8 is facially unconstitutional because it enhances criminal liability based on an individual's status as a gang member, in violation of the eighth amendment prohibition against cruel and unusual punishment. U.S. Const., amend. VIII. While defendant did not attack the constitutionality of section 24-1.8 in his pro se postconviction petition, we recognize that a party may facially attack a statute's constitutionality on appeal even if the party did not raise the issue in the trial court. People v. Thompson , 2015 IL 118151, ¶ 32, 398 Ill.Dec. 74, 43 N.E.3d 984 ; People v. Davis , 2014 IL 115595, ¶ 26, 379 Ill.Dec. 381, 6 N.E.3d 709.
¶ 12 "All statutes are presumed to be constitutional" and "[t]he party challenging the constitutionality of a statute bears the burden of rebutting this presumption and clearly establishing a constitutional violation." People v. Funches , 212 Ill. 2d 334, 339-40, 288 Ill.Dec. 654, 818 N.E.2d 342 (2004). A court must construe a statute to uphold its constitutionality if reasonably possible. Id. A facial attack to a statute is the most difficult to achieve, as the challenger must show that there is no set of circumstances under which the statute would be valid. People v. Greco , 204 Ill. 2d 400, 407, 274 Ill.Dec. 73, 790 N.E.2d 846 (2003). The constitutionality of a statute is a question of law that we review de novo. People v. Fisher , 184 Ill. 2d 441, 448, 235 Ill.Dec. 454, 705 N.E.2d 67 (1998).
¶ 13 It is unconstitutional to impose criminal liability based on status alone. Robinson v. California , 370 U.S. 660, 662-63, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). In Robinson , the Court invalidated a California statute that made "the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted ‘at any time before he reforms.’ " Id. at 666, 82 S.Ct. 1417. The Court found that addiction to narcotics was a "status or condition and not an act" and punishing an individual based on his status alone constituted cruel and unusual punishment in violation of the eighth amendment. Id. at 662, 666-67, 82 S.Ct. 1417.
¶ 14 Defendant argues that section 24-1.8 impermissibly "exposes a defendant to a greater penalty for the act of possessing a firearm based solely on his status as a gang member." Specifically, that unlawful possession of a firearm by a street gang member is a Class 2 felony with a sentencing range of 3 to 10 years ( 720 ILCS 5/24-1.8(b) (West 2014)) whereas "the same conduct by a non-gang member" for aggravated unlawful use of a weapon (AUUW) is a Class 4 felony with a sentencing range of one to three years and with the possibility of probation. Id. § 24-1.6(d)(1); 730 ILCS 5/5-4.5-45 (West 2014).
¶ 15 Unlike the statute in Robinson (), the plain language of section 24-1.8 punishes conduct. Section 24-1.8 provides that it is a Class 2 felony for any person that knowingly "possesses *** a firearm and firearm ammunition while on any street, road, alley, gangway, sidewalk, or any other lands *** and has not been issued a currently valid Firearm Owner's Identification Card and is a member of a street gang." (Emphases added.) 720 ILCS 5/24-1.8(a)(1), (b) (West 2014). A "streetgang" is defined in section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act (Act) as "any combination *** 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. " (Emphasis added.) 740 ILCS 147/10 (West 2014).
¶ 16 "Course or pattern of criminal activity" is defined as (1) two or more "gang -related criminal offenses " committed in whole or in part within this State; (2) where at least one such offense was committed after the effective date of this Act (January 1, 1993); (3) both offenses were committed within five years of each other; and (4) 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 or the Criminal Code of 2012. (Emphasis added.) Id.
¶ 17 On its face, section 24-1.8 criminalizes specific conduct: the State must prove (1) possession of a firearm (2) by an individual without a valid FOID card who (3) is a member of a "streetgang" as defined by the Act. In People v. Murray , 2017 IL App (2d) 150599, ¶ 88, 419 Ill.Dec. 674, 94 N.E.3d 212, rev'd on other grounds , 2019 IL 123289, 440 Ill.Dec. 642, 155 N.E.3d 412, the Second District refused to find section 24-1.8(a)(1) unconstitutional under the eighth amendment because the law The court distinguished from Robinson because it "[was] concerned with [a] recognized disease[ ], not voluntary criminal associations." Id. We find Murray persuasive and agree that section 24-1.8 criminalizes conduct rather than gang member status, as evidenced by the statute itself.
¶ 18 Likewise, in Powell v. Texas , 392 U.S. 514, 517, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), the Court refused to extend Robinson to vacate a defendant's conviction under a law that imposed a fine on anyone that "get[s] drunk or [is] found in a state of intoxication in any public place." The Court found that the law punished the defendant's conduct—the act of being drunk in public—rather than his status as an alcoholic. Id. at 531-32, 88 S.Ct. 2145. Just as in Powell , the statute here constitutionally punishes the voluntary conduct of illegal weapon possession rather than mere gang membership. See People v. Nettles , 34 Ill. 2d 52, 56, 213 N.E.2d 536 (1966) (); People v. Luckey , 90 Ill. App. 2d 325, 331-32, 234 N.E.2d 26 (1967) (...
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