Opinion
No. 1-16-1332
09-18-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GIOVANNI VELEZ, Defendant-Appellant.
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 Cook County, No. 13 CR 1818 The Honorable Timothy J. Joyce, Judge Presiding. JUSTICE LAVIN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment.
ORDER
¶ 1 Held: Evidence was sufficient to convict defendant of aggravated discharge of a firearm towards a peace officer, including defendant's knowledge that the persons fired upon were peace officers. Fines and fees order corrected. ¶ 2 Following a bench trial, defendant Giovanni Velez was convicted of aggravated discharge of a firearm towards a peace officer and sentenced to 12 years' imprisonment with fines and fees. On appeal, defendant contends that the evidence was insufficient to convict him beyond a reasonable doubt and, in particular, that the State failed to prove his knowledge that the persons shot at were peace officers. He also contends that two of his fees must be vacated and that he must receive presentencing custody credit against his fines. As explained below, we vacate the erroneous fees, correct the order assessing fines and fees, and otherwise affirm. ¶ 3 Defendant and codefendant Jose Sosa were charged with attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1), (b)(1) (West 2012)) and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(3) (West 2012)) for, on or about December 18, 2012, allegedly discharging a firearm in the direction of Ricky Rivera and Ramon Salcedo, who they knew (or, for the attempted murder charges, reasonably should have known) to be peace officers (specifically, Chicago police officers) in the course of performing their duties. Defendant and codefendant were tried separately but simultaneously. ¶ 4 Chicago police officer Ricky Rivera testified that he was working with Officer Ramon Salcedo on the night in question, searching a neighborhood for clues regarding a recent shooting. They were not in uniform, and their minivan was not marked as a police car. They wore their badges around their necks, body armor under their clothing, and duty belts. Rivera saw defendant and codefendant standing near an alley. It was night, but the area was adequately lit. Defendant was wearing gray pants and a "grayish-blackish hoody." ¶ 5 When the officers, still in the minivan, approached defendants, they looked in the officers' direction. Codefendant walked towards the minivan, and defendant went into a nearby gangway. Codefendant yelled "gang slogans," and Rivera tried to back the minivan away, as he "wanted to give ourselves some distance" due to the recent shooting. Codefendant yelled "Pop 'em! Pop 'em!" Rivera stopped the minivan, and both officers "yelled" repeatedly - eight to ten times - that they were Chicago police officers and demanded that codefendant show his hands. Defendant then came out of the gangway and fired a single shot. At that time, codefendant was about 25 feet from the minivan and defendant was within 100 feet. At trial, Rivera was clear that he and Salcedo announced that they were officers before defendant fired. ¶ 6 Rivera chased defendant on foot, while Salcedo chased codefendant. Rivera described defendant on the police radio, and then to other officers in person. Defendants were later arrested by Officer Ramiro Gonzalez and another officer. Rivera identified defendant as the shooter for Gonzalez. Defendant was wearing shorts and a tank top at that time. No fired bullet was found at the scene, and Rivera did not find any bullet damage to the minivan. ¶ 7 Chicago police officer Ramon Salcedo testified consistently with Officer Rivera, except that he could not identify defendant as the man who stood with codefendant and went into the gangway. Codefendant was "flashing" gang signs as he walked towards the minivan. He yelled "Pop 'em! Pop 'em!" Salcedo "understood that could be that we were going to get fired upon." Rivera and Salcedo "jumped out of the vehicle," repeatedly announcing that they were police officers. Salcedo yelled "as loud as I could make my voice" as he was "in fear of being shot." Salcedo took cover and heard a single shot, not seeing who fired it because he was taking cover. Salcedo pursued codefendant and saw Gonzalez and his partner arrest him. Salcedo did not see anyone else during the chase. ¶ 8 Officer Ramiro Gonzalez testified that he saw codefendant fleeing and detained him, and Salcedo identified codefendant. After speaking with Rivera, Gonzalez searched for, and found, defendant in an apartment. Near defendant were a pair of gray sweatpants and a black "hoody." Gonzalez also found a revolver in the bathroom, loaded except for a spent shell. A police forensic investigator testified to recovering the revolver and confirming that it contained four live rounds and one spent cartridge. The investigator also recovered two sweatshirts in the apartment, one black with a hood and the other dark gray. ¶ 9 Sarey Roman testified that she was in the apartment with various others when defendant arrived, discarded his pants and a "black sweater," and sat down amongst the occupants of the apartment. The police arrived a short time later. ¶ 10 A forensic chemist testified that the black hooded sweatshirt - in particular, the cuff of the left sleeve - tested positive for gunshot residue, while samples from defendants' hands were negative for gunshot residue. ¶ 11 Following closing arguments, the court found defendant guilty of aggravated discharge of a firearm and not guilty of attempted first degree murder. The court found the witnesses, expressly including Officers Rivera and Salcedo, to be credible. The court found that Rivera backed up the minivan in response to codefendant's cry of "Pop 'em! Pop 'em!," which placed them in fear for their safety. Rivera and Salcedo had not identified themselves as officers at that point, were not uniformed or in a marked police car, and their badges were "perhaps not observable" from outside the minivan. However, they loudly announced their office "by yelling repeatedly that they were the police" before the shot was fired. Rivera identified defendant as the shooter. ¶ 12 The court noted that defendant was found in the apartment, having discarded his outer clothing despite it being December, and a gun with one spent cartridge and four live rounds was found in the bathroom. Although no ballistics evidence linked that gun to the shot, the black sweatshirt found in the apartment had gunshot residue. While noting the arguments that the sweatshirt may not have been defendant's, the Court found that it was nonetheless satisfied "well beyond a reasonable doubt" that defendant fired a shot at Rivera and Salcedo. The court found insufficient evidence of an intent to kill from a single shot. However, the evidence that defendant fired in the officers' direction, and that he knew they were officers before he fired the shot, was sufficient to find defendant guilty of aggravated discharge of a firearm towards peace officers. ¶ 13 Defendant's posttrial motion challenged the sufficiency of the evidence. Following arguments on defendant's and codefendant's posttrial motions, the court denied the motions. It reiterated its trial finding that Rivera and Salcedo loudly and repeatedly announced that they were police officers before defendant fired the shot. ¶ 14 Following a sentencing hearing, the court sentenced defendant upon the Class X offense of aggravated discharge of a firearm towards a peace officer to 12 years' imprisonment and imposed fines and fees. The mittimus reflects 1189 days of credit for presentencing custody. ¶ 15 On appeal, defendant primarily contends that the evidence was insufficient to convict him of aggravated discharge of a firearm towards a peace officer beyond a reasonable doubt. In particular, he argues that the State failed to prove that he knew that Rivera and Salcedo were peace officers when he fired towards them. ¶ 16 On a claim of insufficient evidence, we must determine whether, taking the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Gray, 2017 IL 120958, ¶ 35. It is the responsibility of the trier of fact to weigh, resolve conflicts in, and draw reasonable inferences from the testimony and other evidence, and it is better equipped than this court to do so as it heard the evidence. Id.; In re Jonathon C.B., 2011 IL 107750, ¶ 59. We do not retry a defendant; that is, we do not substitute our judgment for that of the trier of fact on witness credibility or the weight of evidence. Gray, 2017 IL 120958, ¶ 35. The trier of fact need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances; instead, it is sufficient if all the evidence taken together satisfies the trier of fact beyond a reasonable doubt of the defendant's guilt. Jonathon C.B., 2011 IL 107750, ¶ 60. The trier of fact is not required to disregard inferences that flow normally from the evidence, nor to seek all possible explanations consistent with innocence and elevate them to reasonable doubt, nor to find a witness not credible merely because a defendant says so. Id. A conviction will be reversed only where the evidence is so unreasonable, improbable, or unsatisfactory that a reasonable doubt of the defendant's guilt remains. Gray, 2017 IL 120958, ¶ 35. ¶ 17 A person commits the offense of aggravated discharge of a firearm when he knowingly or intentionally discharges a firearm in the direction of another person, or a person he knows to be a peace officer engaged in the execution of his or her official duties. 720 ILCS 5/24-1.2(a)(2), (3)(West 2016). The former is a Class 1 felony while the latter (firing at a known peace officer) is a Class X felony with a prison sentence of 10 to 45 years. 720 ILCS 5/24-1.2(b)(West 2016).
"A person knows, or acts knowingly or with knowledge of [t]he nature or attendant circumstances of his or her conduct, described by the statute defining the offense, when he or she is consciously aware that his or her conduct is of that nature or that those circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that the fact exists." 720 ILCS 5/4-5(a) (West 2016).Because a defendant's knowledge can rarely be proven by direct evidence, it may be proven by surrounding facts and circumstances, including the defendant's actions, from which a trier of fact can fairly draw an inference of knowledge. People v. Monteleone, 2018 IL App (2d) 170150, ¶ 26; People v. White, 2016 IL App (2d) 140479, ¶ 37. ¶ 18 Here, taking the evidence in the light most favorable to the State as we must, we cannot conclude that no rational trier of fact would convict defendant of aggravated discharge of a firearm towards a peace officer. Officers Rivera and Salcedo testified that they loudly and repeatedly announced that they were police officers before the gunshot was fired, and Rivera testified that he saw defendant fire the shot. We need not raise to reasonable doubt the possibility that defendant did not hear Rivera and Salcedo yell "as loud as I [Salcedo] could make my voice" that they were officers, particularly when he was within 100 feet of the minivan and his gunshot in response to codefendant's call to "pop 'em" tends to indicate that he could hear well enough that night. Rivera and Salcedo clearly made their best efforts to make codefendant - and whoever he was addressing "pop 'em" to, who turned out to be defendant - aware that they were officers before "pop 'em" was carried out. From such evidence, a trier of fact could reasonably infer that defendant was aware of the substantial probability that Rivera and Salcedo were peace officers when he fired in their direction. ¶ 19 Defendant also contends that two of his fees must be vacated and that presentencing custody credit must be applied to his fines. The State agrees that he is entitled to relief on some, but not all, of his claims. Defendant acknowledges not raising these claims in the trial court, and the State does not argue that he has forfeited them. The State has thereby forfeited the forfeiture issue and we will consider these claims. People v. Smith, 2018 IL App (1st) 151402, ¶ 7. ¶ 20 Defendant is correct that his $5 court system fee and $5 electronic citation fee must be vacated as inapplicable to his felony offense. The court system fee applies only in traffic cases, and the electronic citation fee applies only in traffic, misdemeanor, ordinance and conservation cases. 55 ILCS 5/5-1101(a) (West 2016); 705 ILCS 105/27.3e (West 2016). ¶ 21 Defendant's 1189 days of presentencing custody entitle him to up to $5,945 credit against his fines at the statutory $5 per day. 725 ILCS 5/110-14(a) (West 2016). The parties correctly agree that his $15 charge for State Police operations (705 ILCS 105/27.3a(1.5) (West 2016)) has been deemed a fine, not a fee, so he is due $15 credit. Smith, 2018 IL App (1st) 151402, ¶ 14. ¶ 22 The parties dispute whether four of defendant's charges are fines or fees. We have held that the $190 charge for filing a complaint with the circuit court clerk (705 ILCS 105/27.2a(w)(1)(A) (West 2016)) and the $15 charge for circuit court clerk document storage (705 ILCS 105/27.3c (West 2016)) are fees. Id. ¶ 15. As the same statutes authorize these fees in civil cases, where they are clearly not fines, we see no reason not to follow Smith. We have also held that the records automation charges of $2 each for the Public Defender and State's Attorney (55 ILCS 5/3-4012, 4-2002.1(c) (West 2016)) are fees, and in particular the Public Defender charge is a fee if the defendant was represented by the Public Defender. Id. ¶ 16; People v. Brown, 2017 IL App (1st) 142877, ¶ 78; but see People v. Camacho, 2016 IL App (1st) 140604 , ¶¶ 47-56. Defendant was represented by the Public Defender, and we again see no reason not to follow Smith. We find these four charges to be fees, not fines, and thus not offset by presentencing custody credit. ¶ 23 Accordingly, the $5 court system fee and $5 electronic citation fee are vacated. We direct the clerk of the circuit court to correct the fines and fees order to reflect said vacaturs and $15 in credit. The judgment of the circuit court is otherwise affirmed. ¶ 24 Affirmed in part, vacated in part, and order corrected.
The court found codefendant guilty of the same offense. --------