People v. Figueroa

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by Reporter of

Decisions

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Illinois Official Reports the accuracy and

integrity of this

document

Appellate Court Date: 2020.11.17

12:14:34 -06'00'

People v. Figueroa, 2020 IL App (2d) 160650

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption RICARDO FIGUEROA, Defendant-Appellant.

District & No. Second District

No. 2-16-0650

Filed February 27, 2020

Decision Under Appeal from the Circuit Court of Boone County, No. 13-CF-268; the

Review Hon. C. Robert Tobin III, Judge, presiding.

Judgment Affirmed in part and reversed in part.

Cause remanded with directions.

Counsel on James E. Chadd, Thomas A. Lilien, and Yasemin Eken, of State

Appeal Appellate Defender’s Office, of Elgin, for appellant.

Tricia L. Smith, State’s Attorney, of Belvidere (Patrick Delfino,

Edward R. Psenicka, and Stephanie Hoit Lee, of State’s Attorneys

Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.

Justices Burke and Bridges concurred in the judgment and opinion.

OPINION

¶1 Following a trial in the circuit court of Boone County, a jury found defendant, Ricardo

Figueroa, guilty of three counts of first degree murder (720 ILCS 5/9-1(a)(1)-(3) (West 2012)),

two counts of attempted first degree murder, unlawful possession of a firearm by a street gang

member (720 ILCS 5/24-1.8(a)(1) (West 2012)), and mob action (720 ILCS 5/25-1(a)(1) (West

2012)). The jury further found that defendant committed the offenses of first degree murder

and attempted first degree murder while armed with a firearm. The court sentenced defendant

on five of the seven counts to an aggregate of 60 years in prison. Defendant appeals. For the

reasons that follow, we reverse defendant’s conviction of unlawful possession of a firearm by

a street gang member. Pursuant to Illinois Supreme Court Rule 615(b)(3) (eff. Jan. 1, 1967),

we reduce that conviction to aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(2),

(a)(3)(C) (West 2012)), and we remand the matter to the trial court for sentencing on that

offense. We affirm the court’s judgment in all other respects.

¶2 I. BACKGROUND

¶3 The State’s theory of the case is that the shooting resulting in defendant’s convictions was

precipitated by a gang rivalry between the Sureño 13s and the Latin Kings. Giovanni Galicia,

Jesus Casas, and Fermin Estrada were all members of the Sureño 13 street gang. Around

midnight on November 29, 2013, going into the early morning hours of November 30, they

arrived together at Estrada’s girlfriend’s apartment in an area of Belvidere known as “Little

Mexico.” Galicia was in the driver’s seat of his Chevrolet Impala, Casas sat in the front

passenger seat, and Estrada sat in the back behind Casas. A Lincoln Navigator arrived on the

scene. Two armed men exited the Navigator. One of them approached the driver’s side of the

Impala, and the other approached the passenger side. Casas saw the man on the passenger side

tap on the window with a revolver, whereas Estrada saw that man tap on the window with his

hand. The man on the driver’s side opened fire repeatedly on the vehicle, killing Galicia.

Neither Casas nor Estrada was injured. The suspects returned to the Navigator and left the

scene.

¶4 Shortly after the shooting, a police officer saw a Navigator driving in the direction that he

believed the perpetrators might be traveling. When the officer began following the Navigator,

the driver of the Navigator, Ricardo Garcia, led him on a high-speed chase through Boone and

Winnebago Counties. The Navigator eventually stopped in Rockford after sustaining damage

during the pursuit. The occupants of the Navigator fled on foot. Police officers arrested Garcia,

Cheyanne Patton, and defendant in a nearby field. Anthony Perez was arrested later, after the

police had an opportunity to interview the other suspects and the witnesses. 1 Inside the

Navigator, officers found certain incriminating evidence, including a .40-caliber Glock 22

handgun that was later determined to be the murder weapon. The police also noticed a revolver

lying in the street by the Navigator.

¶5 Several hours after the shooting, two detectives interviewed defendant. The interview was

videotaped. The video was played for the jury in its entirety, except for (1) portions where

defendant was alone in the interview room and (2) the very end of the video when they

Garcia, Perez, and defendant were all charged with various offenses arising out of the events of

1

November 29-30, 2013. They were tried separately. Patton was not charged.

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discussed charges and bond. Defendant provided conflicting accounts of his whereabouts and

actions that evening. In his initial accounts, he claimed that he did not know why a police

officer attempted to stop Garcia’s Navigator or why Garcia would not pull over in response to

the officer’s attempt to stop him. Defendant also said that, to his knowledge, only Garcia and

Patton were in the Navigator with him.

¶6 Defendant changed his story amidst the detectives’ questioning. He divulged more

information and began to implicate himself. For example, he told the police that Perez was a

fourth occupant of the Navigator and that the group drove to Little Mexico to “go see who’s

out there.” Defendant at one point claimed that Perez got out of the Navigator in Little Mexico

while Garcia, Patton, and defendant drove around the area. Defendant’s understanding was

that, if Perez saw somebody, defendant would “jump out and just whoop their ass, whatever.”

After Perez exited the vehicle, however, defendant heard multiple “pops.” According to

defendant, Perez got back in the Navigator and would not tell the others what had happened.

¶7 Defendant continued to change his story in ways that increasingly incriminated himself. In

the next iteration of his story, he said that he knew that Little Mexico was where the Sureños

hung out. He admitted that he got out of the Navigator and went up to the passenger side of a

parked car “for a second.” He said that he knocked on the window of that car with his hand

and twice asked, “Who is you?” As he walked back to the Navigator, he heard “pops.”

Thinking that “they” were shooting at “us,” he ran back to the Navigator. When the Navigator

reached a stop sign, Perez got in the Navigator but would not tell the others what happened.

Defendant said that he did not know if Perez was armed.

¶8 Defendant later incriminated himself even further. He testified that his group was at Mallek

Sanchez’s house that night and left to get beer. They were driving around and were mad

because Sureños members had shot up Sanchez’s house multiple times in recent months. They

decided to go to Little Mexico. Perez suggested that he and defendant should get out on foot

to “see who we can see.” Defendant acknowledged that he had a revolver with him, which

“was supposed to be” full of rounds. He told the detectives, however, that he did not intend to

use the revolver. According to defendant, he was instead thinking that he and Perez would see

if anybody was outside and, if so, they would “box” them (i.e., a fistfight). Defendant explained

that he and Perez exited the Navigator on foot and walked up to a car. Defendant went to the

passenger side, and Perez went to the driver’s side. Defendant knocked and asked the

occupants of the car either “What you is?” or “Who is you?” Someone in the car waived his

hands, as if to say, “I’m not nothing.” Defendant started to walk away from the car. The car

then went into reverse, and defendant heard 10 to 15 “pops.” He assumed that Perez did the

shooting. Defendant and Perez took off running. Defendant suspected that Perez had hit

somebody or killed somebody. They got into the Navigator and went toward Rockford. A

police officer then located the Navigator, and a chase ensued.

¶9 After questioning defendant, the detectives left the room, and defendant had an opportunity

to sleep. The detectives returned and asked defendant if there was anything that they had talked

about that he would like to change. Defendant responded that he had told them “damned near

everything” that he knew. In response to further questioning, he clarified that only he and Perez

had guns in the Navigator. He said that he first saw Perez’s gun when they were getting out of

the Navigator in Little Mexico. When questioned about the involvement of Garcia and Patton,

defendant explained that everybody in his group had “some type of animosity” and resentment

for Sanchez’s house getting shot up. Defendant denied, however, that they were angry when

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they left for Little Mexico. He agreed with one of the detectives that his train of thought was

that he would “whoop somebody’s ass.” He denied that he intended to shoot anybody or that

there was a “plan,” other than to see who was out. He said that he brought his gun in the

Navigator as a precaution.

¶ 10 After defendant had another opportunity to sleep, he told the detectives that “everybody

knew” that Perez had a gun. Defendant assumed that the other occupants of the Navigator knew

that defendant had one as well. Defendant said that their “plan” that night was “to go to the gas

station, and on our way to the gas station, we were going to go by Little Mexico.” A detective

then asked defendant, “And the point of that was to see who was out?” Defendant responded,

“To see who was out.” The detective added, “To see what kind of shit you could get into?”

Defendant responded, “basically.”

¶ 11 The State presented 21 witnesses at trial. As defendant does not challenge the sufficiency

of the evidence against him (apart from his arguments pertaining to the charge of unlawful

possession of a firearm by a street gang member, which we will discuss separately in the

analysis section), it will suffice to mention a few particularly important witnesses. Sergeant

David Dammon of the Belvidere Police Department testified as an expert in street gangs. He

explained that there was a rivalry between the Sureño 13s and the Latin Kings in Belvidere.

He identified the victims of the shooting as members of the Sureño 13s, and he identified

defendant, Perez, Garcia, and Patton as members of the Latin Kings. Estrada and Casas

testified for the State and detailed their actions leading up to and following the shooting. The

court granted the State’s motion to give Casas use immunity for his testimony, as Casas was

facing unrelated charges of possession of a firearm by a street gang member, and the prosecutor

intended to question Casas at defendant’s trial about his own gang affiliations.

¶ 12 Patton, who was the sole occupant of the Navigator who was not charged in connection

with the events of November 29-30, 2013, also testified for the State pursuant to a grant of use

immunity. Patton detailed her group’s actions before and after the shooting. She testified that

she and Garcia, who was her boyfriend at the time, attended a party at Sanchez’s house in

Belvidere. Defendant and Perez were there, and Patton saw Perez “[t]aking pictures with” a

gun. Patton testified that she and Garcia decided to leave the party in Garcia’s Navigator. As

they were getting ready to go, Perez and defendant got into the back of the Navigator and said

something about going to Little Mexico to “get at somebody.” Patton testified that Garcia drove

the group to Little Mexico, at which point Perez and defendant exited and asked Garcia to drive

around the block. Patton heard gunshots. Perez and defendant ran back to the Navigator and

got in the backseat. At that point, Perez had a gun in his hand and said, “I shot that n*** in his

face.” Perez and defendant told Garcia to drive to Rockford. They were followed by a police

officer, their tires blew out, the Navigator came to a stop, and everybody ran.

¶ 13 Defendant elected not to testify in his own defense. He called two witnesses. A police

officer testified that he was told that Garcia pointed a gun at another police officer immediately

before the group fled on foot after the Navigator came to a stop in Rockford. Defendant also

called Dammon to the stand to perfect the impeachment of Casas with respect to certain prior

inconsistent statements.

¶ 14 The jury found defendant guilty of all charges and determined that, during the commission

of the offenses of first degree murder and attempted first degree murder, defendant was armed

with a firearm. A 15-year firearm enhancement made the sentencing range for first degree

murder 35 to 75 years’ imprisonment, which had to be served at 100%. The same 15-year

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firearm enhancement made the sentencing ranges for the attempted murder convictions 21 to

45 years, which had to be served at 85%. The sentencing range for unlawful possession of a

firearm by a street gang member was 3 to 10 years’ imprisonment, to be served at 50%. The

sentencing range for mob action was 1 to 6 years, to be served at 50%.

¶ 15 Defendant argued that the court should apply the firearm enhancement only to the sentence

for first degree murder:

“Judge, I think that imposing a firearm sentencing enhancement on three counts,

one first degree murder count and two attempt first degree murder counts, based on the

simultaneous use or discharge of a single firearm amounts to cruel and unusual

punishment that violates the proportionate penalties clause. It, in essence, creates a life

sentence particularly where you’re dealing with consecutive sentencing. It’s a de facto

life sentence which violates the proportionate penalties clause and flies in the face of

the legislative intent behind the enhancement. The purpose of the enhancement is

served by enhancing Count 1 [the first degree murder conviction]. It’s unnecessary and

unreasonable to enhance 4 and 5 [the attempted first degree murder convictions] for the

very same firearm, the very same action.”

The prosecutor responded that there were separate acts, with multiple gunshots and three

victims, such that defendant was “subject to a separate firearm enhancement for each victim.”

¶ 16 The trial court acknowledged defendant’s argument but emphasized that, unlike many

other states, Illinois has mandatory minimum sentences, firearm enhancements, truth-in-

sentencing rules, and consecutive sentencing requirements that significantly restrict a court’s

discretion. The legislature has never desired to change this, and the constitutional argument

against this sentencing scheme “hasn’t had any real traction” for offenders, such as defendant,

who are over 18 years old. The court rejected defendant’s proportionate penalties argument

and denied his request to eliminate the firearm enhancement on the two sentences for attempted

first degree murder.

¶ 17 Notwithstanding that ruling, after discussing the statutory aggravating and mitigating

factors, the trial court mentioned that defendant’s age was an additional consideration, even

though the eighth amendment’s restrictions on sentencing juvenile offenders did not apply to

adults:

“One [factor] that’s not necessarily set out by statute in the factors in mitigation or

I guess aggravation depending upon the person’s age is, in fact, age. I don’t find—the

Miller trilogy [(see, e.g., Miller v. Alabama, 567 U.S. 460 (2012))] is not required here

because the defendant was 22 years old at the time of the offense; however, I am

considering it because I don’t think that 18 is necessarily some magical date where

people acquire maturity, intelligence, and proper thinking. So I did look at the factors

both that Miller set out in its trilogy as well as those eventually adopted by the general

assembly and set out by statute. I gave some discount value to those based upon the

fact that he’s 22. He’s not—this didn’t occur a day after his 18th birthday. So I did

consider those things.”

The trial court sentenced defendant on five of the seven counts. The court sentenced defendant

to 39 years in prison for first degree murder, 21 years for each count of attempted first degree

murder, 10 years for unlawful possession of a firearm by a street gang member, and 6 years

for mob action. The sentence for the one count of first degree murder was to run consecutively

to the sentence for all other counts, which would run concurrently with each other.

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¶ 18 Defendant timely appealed.

¶ 19 II. ANALYSIS

¶ 20 Defendant raises four issues on appeal: (1) the trial court erred by allowing the State’s

motions to grant use immunity to Casas and Patton and by improperly restricting defendant’s

cross-examination on that issue, (2) defense counsel was ineffective for failing to request

exclusion of certain portions of defendant’s videotaped statement to the police, (3) the State

failed to prove the elements of unlawful possession of a firearm by a street gang member, and

(4) defendant’s sentence violated the proportionate penalties clause of the Illinois Constitution

(Ill. Const. 1970, art. I, § 11).

¶ 21 A. Use Immunity and Cross-Examination

¶ 22 Defendant presents his first issue in two parts. He argues that the court erroneously allowed

the State’s motions to grant use immunity to Casas and Patton because the State failed to

establish that those witnesses either refused to testify or were likely to refuse based on their

fifth amendment privileges against self-incrimination. Defendant then contends that the court

improperly restricted his right to cross-examine Casas and Patton about their immunity. The

State responds that the court correctly determined that Casas and Patton either refused to testify

or were likely to refuse based on their fifth amendment rights. According to the State,

defendant did not preserve his argument about the cross-examinations of Casas and Patton.

Even so, the State maintains, the court did not restrict defendant’s right to cross-examination.

¶ 23 1. Additional Background

¶ 24 a. Casas’s Immunity

¶ 25 The trial in this matter was scheduled to begin on February 22, 2016. That day, the

prosecutor initially indicated that the State was not ready for trial, given that two of its key

witnesses, Casas and Estrada, failed to appear in court pursuant to subpoenas. The prosecutor

requested leave to file petitions for indirect criminal contempt against Casas and Estrada. The

prosecutor said that he was “not sure at this point how likely they are going to cooperate.” The

court allowed the State to file its contempt petitions and issued arrest warrants. After this

colloquy, the prosecutor informed the court that the State’s investigator had contacted Casas.

The court took a 45-minute recess. When the court recalled the case, the prosecutor stated that

both Casas and Estrada had been taken into custody.

¶ 26 On the next day, after the jury was selected, the prosecutor told the court outside of the

jury’s presence that Casas would be the State’s first witness. The prosecutor said: “We’re going

to have to file a motion to just give him use immunity because he does have pending charges

and there are some questions that are going to be asked of him.” (As noted, Casas was facing

two charges of unlawful possession of a firearm by a street gang member that were unrelated

to the events of November 29-30, 2013; he was represented by attorney Al Kola in connection

with those charges.) The prosecutor told the court that he spoke with Casas and Kola the

previous night and learned that Kola was not going to be in court for defendant’s trial. The

prosecutor asked the court to speak with Casas outside the presence of the jury so the court

could “inquire just to make sure that the Court knows he spoke to his lawyer yesterday.” The

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court indicated that the parties would present their opening statements and the court would

then “kick the jury out” and make sure that Casas would testify.

¶ 27 Following opening statements, defense counsel indicated that she had just received a copy

of the State’s written motion for Casas’s use immunity According to defense counsel, when

the prosecutor handed her that motion just before opening statements, he said that he did not

think that Casas would refuse to testify. Defense counsel argued that, if the prosecutor’s

statement were true, “this undertaking” (i.e., granting use immunity) was unnecessary, as the

use immunity statute provides for immunity only if a witness refuses or is likely to refuse to

testify on the basis of his or her fifth amendment privilege against self-incrimination. The

prosecutor responded:

“I’m still going to ask [Casas] questions that are going to—that are going to elicit

incriminating answers, and I need to give him immunity for those given the fact he’s

got pending charges so regardless of how you want to—you want to call it one thing or

call it another, the fact of the matter is that we would be offering him that use immunity

with regards to what he says.

***

And besides that, Judge, this is our motion. They don’t have a right to—”

Defense counsel then noted that, based on the wording of the statute, the State had no obligation

to give Casas immunity if he did not refuse to testify or was not likely to do so. The court asked

the prosecutor whether he had spoken with Kola about this issue, and the prosecutor responded

in the affirmative.

¶ 28 After bringing the jury out and discharging them for the day, the court said:

“Okay. I will advise Mr. Casas of his—initially of his Fifth Amendment rights of

the use immunity and if he wishes—if the State is going to offer the use immunity,

advise him that he then loses those rights and make sure he’s had a chance to discuss

his matter with his attorney and then we will bring him back and testify first thing in

the morning.”

Defense counsel asked the court whether Casas would be required to assert his fifth amendment

privilege in front of the jury. The court responded:

“Well, it depends. Let’s see what he has to say and his basis. My understanding

from the proffers by the State is that based upon communication with his attorney, they

anticipate that he based upon being provided use immunity will, in fact, testify. In the

event that he goes against his attorney’s advice, I will—we’ll have to address that

outside of the jury’s presence.”

¶ 29 The court brought Casas into the courtroom and questioned him as follows:

“THE COURT: *** We’re going to start with your testimony tomorrow morning.

I just want to let you know a couple things. One is that some questions may be asked

of you tomorrow morning that may—the answers might incriminate yourself. Do you

understand that?

MR. CASAS: Okay.

THE COURT: A little louder.

MR. CASAS: I understand.

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THE COURT: Secondly is have you had a chance to speak with your attorney

about—about that issue?

MR. CASAS: Not too much. Am I going to be able to?

THE COURT: Have you had any discussions before today with Attorney Kola?

MR. CASAS: I spoke to him once.

THE COURT: Okay. And it’s my understanding that the State is offering you what

is called use immunity, meaning that your testimony cannot be used against you to

prosecute you in further proceedings regarding this. Do you understand that?

MR. CASAS: I understand.

THE COURT: And based upon them offering you use immunity and your

discussions with your attorney, Mr. Kola, do you intend to testify tomorrow morning

or not testify?

MR. CASAS: I’m going to testify.

THE COURT: You are going to testify?

MR. CASAS: Yes.”

¶ 30 After Casas left the courtroom, defense counsel reiterated her argument that there was no

proffer by the State, and no indication from Casas’s responses to the court’s questions, that

Casas either refused to testify or was likely to refuse, based on his right against self-

incrimination. The prosecutor responded:

“Well, Your Honor, as the Court knows, the State has the full power to give someone

[use immunity]. We can with the advice of counsel let [Casas] know that what he says

will not be used against him. Only the State has that power. We have given not only

the witness but the witness’s attorney as well [the assurance] that whatever he says on

that stand tomorrow will not be used against him in his pending case, et cetera, Judge,

and it’s been made absolutely crystal clear. And the State does have the power to do

so. [Casas] simply is choosing to cooperate at this point.”

The court then ruled:

“I’m going to find the State has met their burden. I will find that they have the

ability to offer use immunity. They have done so. And that he is now based upon that

in discussions with his attorney has decided to testify in consideration of that use

immunity.”

Defense counsel asked whether the court would require Casas to address his fifth amendment

right in front of the jury. The court said “[n]o,” so long as Casas chose to testify.

¶ 31 The discussion then turned to whether the jury should be apprised that Casas was testifying

pursuant to a grant of use immunity. The prosecutor asked for the defense to be barred from

addressing that issue on cross-examination, as it was not relevant. Defense counsel disagreed.

The court ruled:

“I think the jury has a right to if—if they’d [the defense] want to, but at the same

time I can’t for the—again, I’m going to leave it up to you, but I can’t for the life of me

think why defense would want to bring up the immunity because if this is [Casas’s]

chance to say whatever could be culpable to him, I would guess that that [sic]—I don’t

know. I’ll leave it up—it’s trial strategy. But the fact that he’s given immunity I think

goes towards any bias, interest he may have in his testimony.

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***

I don’t think it’s prejudicial or anything of that nature. So to the extent for trial

strategy purposes you want to address that, that’s a trial strategy issue and it would be

allowable.”

¶ 32 The next day, before Casas testified, the court reiterated that the State could not “flush out”

on direct examination that Casas received immunity, as the court believed that such evidence

“would be corroborating.” The defense, however, could open the door by addressing the issue

of immunity during cross-examination.

¶ 33 Consistent with the court’s ruling, the prosecutor did not address the issue of immunity

during his direct examination of Casas. The prosecutor did, however, elicit testimony from

Casas that the state’s attorney’s office had not given him any promises or special consideration

with respect to his pending charges in exchange for his testimony. On cross-examination,

defense counsel questioned Casas about his immunity:

“Q. Mr. Casas, you have been given immunity though for your statements today,

correct?

A. I don’t know, I am not sure, but I believe so.

Q. [The prosecutor in the present case] is, in fact, in charge of the prosecution of

your cases; is that correct?

A. I believe so.

Q. You have been in custody since Monday for failing to appear in response to a

subpoena, correct?

A. Correct.

Q. How many times have you met with [the prosecutor] since you were taken into

custody?

***

A. I believe like twice.

Q. And you expect to be released from custody after you testify here for [the

prosecutor]; is that correct?

A. Correct.”

On redirect examination, Casas testified that the prosecution gave him immunity for his

statements in defendant’s trial. He agreed with the prosecutor that he was in no fear of having

his responses used against him and that he could testify freely. According to Casas, nobody

forced him to testify and he in fact wanted to testify. Upon further cross-examination, Casas

acknowledged that he failed to appear in court for this trial when he was subpoenaed.

¶ 34 We granted defendant’s motion to supplement the record with the State’s written motion

to grant Casas use immunity, which the prosecutor tendered to defense counsel during the trial.

In its motion, the State indicated that it intended to call Casas as a witness, that Casas had a

pending criminal case in Boone County, and that the State believed that Casas would “assert

his Fifth Amendment right against self-incrimination and refuse to testify in this matter.”

¶ 35 b. Patton’s Immunity

¶ 36 At the time of the trial, Patton was serving a prison sentence on charges that were unrelated

to the events of November 29-30, 2013. Before jury selection, one of defendant’s attorneys

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informed the court that, the day before, Patton requested legal advice from her and cocounsel

as to whether she had to testify. Defense counsel informed the court that she told Patton that

she could not offer legal advice. Defense counsel stated to the court: “[Patton] needs to be

advised before she’s in front of the jury whether she’s going to testify, not testify, what her

rights are, [and] what her rights are not because that creates a problem if she’s in front of the

jury and decides that she’s not going to testify and asserts the Fifth.”

¶ 37 The court then asked the prosecutor if the State intended to offer Patton immunity for her

testimony. The prosecutor responded:

“We will—if she—we will have to offer her use immunity if she feels

uncomfortable asking the—if she feels uncomfortable answering questions. We did go

speak with her. She did indicate that there was some conversation about an attorney. I

have a little bit of a different—my understanding is it was something else. But it’s

possible that she would—that she may or may not hesitate to that, but I did tell her as

well that it’s basically up to her but to let her know as well that the State at this point

as far as if it goes that route, then I would have to ask the judge to entertain a motion.”

The court and the parties then discussed whether the public defender’s office could represent

Patton. The prosecutor added that Patton had not asked him for an attorney when they spoke

and that she was indeed “very cooperative.” The court indicated that outside of the jury’s

presence, it would advise Patton of her rights, ask her whether she would testify, “kick it over

to the State regarding use immunity,” and, if necessary, appoint counsel for Patton.

¶ 38 Shortly before Patton testified, the bailiff informed the court that Patton was “all real

emotional crying now.” The prosecutor added that Patton was “scared” and “freaking out.”

The prosecutor mentioned that he intended to bring up on direct examination that Patton was

not charged with any crime for her participation in the events of November 29-30, 2013, and

that she was offered use immunity. The court immediately said, “State’s motion to offer her

use immunity is heard and granted.” Similar to her opposition to Casas’s use immunity, defense

counsel objected that there was no basis to grant the State’s motion for use immunity without

either a proffer from the prosecutor or an indication from Patton that she refused to testify or

was likely to refuse based on her right against self-incrimination. The prosecutor responded

that, if the State could not raise the issue of use immunity on direct examination, defense

counsel should not be allowed to raise it on cross-examination to paint the State in a bad light.

The court said:

“Outside of the jury’s presence we’ll confirm that she’s testifying with use

immunity. In the event that—I mean, at this point, clearly she would have a right to

claim the Fifth but for the State’s use immunity. There’s no logical reason that she—

that use immunity would be denied. There’s no rational reason not to. And then State—

as we did with the other ones [(i.e., Casas)], State can’t front the use immunity but if

defense chooses to open the door, then State can use it at closing for purposes of

bolstering the testimony of the witness.”

Defense counsel asked whether the court would question Patton on the record outside the

presence of the jury as to whether she was asserting her right against self-incrimination. The

prosecutor interjected, “Judge, she doesn’t have to.” The court responded:

“At this point—she doesn’t have to. At this point I’ll just let her know that she’s

got use immunity, verify that she’s going to be testifying. If she says, no, I’m still not

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going to testify, then we’ve got some contempt issues. But at this point, that’s all that’s

necessary.”

Defense counsel “respectfully disagree[d]” and renewed her objection.

¶ 39 The court brought Patton into the courtroom and engaged in the following colloquy with

her:

“THE COURT: *** First of all, the State is offering you use immunity, which

means that the State cannot use your statements here—your testimony here in court to

prosecute you in regards to those statements. Do you understand that?

THE WITNESS: Yes.

THE COURT: Are you going to testify in this case?

THE WITNESS: Yes.

THE COURT: Okay.”

¶ 40 The prosecutor did not raise the issue of immunity during Patton’s direct examination. As

requested by defense counsel, the court took a recess between direct examination and cross-

examination to allow counsel to confer with defendant as to whether the defense would address

the immunity issue on cross-examination. Before reconvening, the court confirmed with

defense counsel that she had “plenty enough time to discuss that” with defendant. On cross-

examination, defense counsel impeached Patton by highlighting her criminal history; counsel

did not elicit testimony that Patton had received use immunity.

¶ 41 Subsequently, during the jury instruction conference, the State objected to giving the jury

an instruction that would have suggested that Patton was an accomplice in connection with the

events of November 29-30, 2013. See Illinois Pattern Jury Instructions, Criminal, No. 3.17

(approved Oct. 17. 2014) (hereinafter IPI Criminal No. 3.17). During the parties’ debate in

connection with that instruction, the prosecutor initially denied that Patton was given use

immunity. The court corrected the prosecutor, recalling that Patton was indeed given use

immunity “and then defense decided not to comment on it.” Defense counsel stated, “That’s

absolutely correct.” In the context of discussing IPI Criminal No. 3.17, the court reiterated its

belief that use immunity typically bolsters witnesses’ testimony, as such witnesses can “purge

all their sins *** without any consequences.” Over the State’s objection, the court ultimately

gave the jury IPI Criminal No. 3.17.

¶ 42 2. Alleged Noncompliance With the Use Immunity Statute

¶ 43 Defendant argues that the trial court erroneously granted use immunity to Casas and Patton

because the State failed to establish that those witnesses either refused to testify or were likely

to refuse based on their fifth amendment privileges against self-incrimination. Defendant

asserts that this issue is subject to de novo review. The State does not argue that a different

standard of review is warranted.

¶ 44 Illinois’s use immunity statute provides, in relevant portion:

“(b) *** [I]n any investigation before a Grand Jury, or trial in any court, the court

on motion of the State shall order that a witness be granted immunity from prosecution

in a criminal case as to any information directly or indirectly derived from the

production of evidence from the witness if the witness has refused or is likely to refuse

to produce the evidence on the basis of his or her privilege against self-incrimination.”

725 ILCS 5/106-2.5(b) (West 2012).

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The State has “the exclusive authority to grant use immunity,” and “[t]he trial court’s role is

limited to examining the motion to determine whether the motion meets the procedural and

substantive requirements of the use immunity statute.” People v. Ousley, 235 Ill. 2d 299, 315

(2009). A court has no discretion to deny a motion for use immunity that meets the statute’s

requirements. Ousley, 235 Ill. 2d at 316.

¶ 45 On appeal, defendant maintains that use immunity is appropriate only when the State

demonstrates a “need” to offer immunity. According to defendant, certain portions of the

record show that the State did not need to grant immunity to Casas and Patton. In Ousley,

however, our supreme court said that, because a court’s role with respect to a motion for use

immunity is essentially ministerial, “a court cannot decide whether a procedurally proper

motion is necessary or advisable.” Ousley, 235 Ill. 2d at 315.

¶ 46 In his reply brief, defendant contends that a different portion of Ousley supports his

argument that the State must demonstrate its need to grant use immunity to a witness.

Specifically, in the context of analyzing whether the appeal was moot, the court in Ousley

considered whether a codefendant’s guilty plea “waived his privilege against compulsory self-

incrimination, so that the State no longer needs use immunity in order to compel [that

witness’s] testimony against his codefendants.” (Emphasis added.) Ousley, 235 Ill. 2d at 306.

“[A] judicial opinion, like a judgment, is authority only for what is actually decided in the

case.” In re N.G., 2018 IL 121939, ¶ 67. Read in context, the “need” that the court mentioned

in Ousley related to whether there was an active controversy, insofar as the court considered

whether a witness’s fifth amendment rights remained intact after pleading guilty but before the

judgment was finalized. The court never suggested that, when a witness has a fifth amendment

right not to incriminate himself, the State must prove its need before offering use immunity.

As noted above, the court said the opposite: “[T]he court’s role in considering a motion for use

immunity essentially is ministerial, so that a court cannot decide whether a procedurally proper

motion is necessary or advisable.” Ousley, 235 Ill. 2d at 315.

¶ 47 Defendant notes that this court has said that “[a] grant of immunity under statutory

authority must be in strict compliance with the terms of the statute [citation], since the removal

of the privilege against self-incrimination by a grant of immunity is a matter which must be

left to the legislature [citation], and which may only be accomplished by the legislature.”

People v. Hamm, 136 Ill. App. 3d 11, 23 (1985). Defendant proposes that Hamm also stands

for the broader proposition that “immunity should not be granted where the witness’s

invocation of his or her fifth amendment right is based on speculation.” Defendant’s reliance

on Hamm is unavailing because (1) it addressed a different immunity statute and (2) it is

factually distinguishable. In Hamm, the defendant requested immunity for a potential witness

whom the defense had not even bothered to subpoena. Hamm, 136 Ill. App. 3d at 25. The court

reasoned that, absent a subpoena, there was no way of knowing whether this witness was likely

to refuse to testify. Hamm, 136 Ill. App. 3d at 25. Here, by contrast, both Casas and Patton

were under subpoena.

¶ 48 During oral argument, defense counsel proposed that the use immunity statute requires a

witness to say on the record that he or she refuses to testify. Accepting defendant’s argument

would require us to read the language “or is likely to refuse” out of the statute, limiting use

immunity to situations where a witness explicitly refuses to testify. We cannot embrace an

interpretation that would render this statutory language meaningless. See People v.

McChriston, 2014 IL 115310, ¶ 22.

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¶ 49 Ousley establishes that the trial court’s ministerial role includes “examining the motion [for

use immunity] to determine whether the motion meets the procedural and substantive

requirements of the use immunity statute.” Ousley, 235 Ill. 2d at 315. Assuming arguendo that

it is within the scope of a trial court’s ministerial role to question the State’s determinations as

to whether a given witness is likely to refuse to testify on the basis of his or her fifth amendment

privilege against self-incrimination, the record here supports the conclusion that, absent use

immunity, Casas and Patton were likely to refuse to testify on the basis of their fifth amendment

privileges.

¶ 50 The State’s theory was that the November 2013 shooting related to a gang feud between

the Latin Kings and the Sureño 13s. To establish defendant’s motive, the State intended to ask

Casas on the stand whether he was a member of the Sureño 13s. Casas had a clear constitutional

right not to incriminate himself. See Ousley, 235 Ill. 2d at 306 (“Under the fifth amendment, a

witness in a criminal case may refuse to answer questions which might incriminate him when

he has reasonable cause to believe he might subject himself to prosecution if he answers.”). By

answering questions about his gang affiliation, Casas could incriminate himself in connection

with his own pending charges for unlawful possession of a firearm by a street gang member.

The prosecutor asserted in the State’s written motion to grant use immunity that he believed

that Casas would “assert his Fifth Amendment right against self-incrimination and refuse to

testify in this matter.” The prosecutor’s belief was reasonable, considering the incriminating

nature of Casas’s anticipated testimony, Casas’s failure to appear in court pursuant to the

State’s subpoena, and the fact that the prosecutor discussed the issue of immunity with Casas’s

attorney. The State’s motion to grant Casas use immunity met the procedural and substantive

requirements of the statute, so the court was obligated to accept it.

¶ 51 The record supports the conclusion that Patton also was likely to invoke her privilege

against self-incrimination absent a grant of immunity. Although Patton was not charged in

connection with the events of November 29-30, 2013, she was in close association that night

with Garcia, Perez, and defendant—all of whom were charged with murder and other offenses.

Unrepresented by counsel, Patton might testify to something that, whether she recognized it or

not, subjected her to criminal liability under principles of accountability. See 720 ILCS 5/5-

2(c) (West 2012) (A person is legally accountable for another’s conduct when “either before

or during the commission of an offense, and with the intent to promote or facilitate that

commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the

planning or commission of the offense.”). Indeed, the trial court determined that the evidence

justified an accomplice instruction relating to Patton’s testimony.

¶ 52 Furthermore, the record shows that Patton was reluctant to testify at defendant’s trial. On

the first day of the trial, defense counsel informed the court that Patton recently asked whether

she had to testify. Several days later, immediately before Patton was scheduled to testify for

the State, the bailiff informed the court that Patton was crying and “real emotional.” The

prosecutor confirmed at that time that Patton was “scared” and “freaking out.” The State

thereafter offered Patton use immunity. The record thus supports a conclusion that Patton was

likely to refuse to testify on the basis of her right against self-incrimination.

¶ 53 For these reasons, we hold that the trial court did not err in granting the State’s motions for

use immunity.

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¶ 54 3. Alleged Restrictions on Cross-Examination

¶ 55 Defendant also contends that the court improperly restricted his ability to effectively cross-

examine Casas and Patton about receiving use immunity. The State argues inter alia that

defendant failed to preserve this issue.

¶ 56 In a criminal case, “a defendant preserves an issue for review by (1) raising it in either a

motion in limine or a contemporaneous trial objection, and (2) including it in the posttrial

motion.” People v. Denson, 2014 IL 116231, ¶ 11. During the trial, over the State’s objection

that the witnesses’ immunity was irrelevant and should not be explored on cross-examination,

the court ruled that the State could not broach the topic of immunity on direct examination but

the defense could decide, as a matter of trial strategy, to open that door on cross-examination.

The court reasoned that use immunity arguably bolsters a witness’s credibility. Defendant

maintains on appeal that the court’s faulty reasoning caused defense counsel to

underemphasize the impeaching value of use immunity when cross-examining Casas and

Patton, but defendant never raised this specific objection at the trial. Defendant asserted in a

single sentence of his posttrial motion that he “was limited in his cross-examination of the

witnesses,” but he never articulated why that was the case. Defendant thus forfeited this issue.

¶ 57 Forfeiture aside, defense counsel indeed cross-examined Casas on his receipt of immunity.

The record also confirms that defense counsel decided, as a matter of trial strategy, not to cross-

examine Patton on that issue.

¶ 58 B. Defendant’s Videotaped Statement

¶ 59 Defendant next argues that defense counsel was ineffective for failing to seek exclusion of

certain portions of defendant’s videotaped statement to the police. Defendant maintains that

the following statements that he made during the interview were unrelated to the charged

offenses and were more prejudicial than probative: (1) he had already been to jail and had a

record, (2) the police already knew him and he had “a record in Belvidere,” (3) he was a

“double felon in Belvidere,” (4) when he agreed to talk to the police in the past, he suddenly

found himself “under arrest for aggravated battery, mob action, this, this [sic], and whatever,”

and (5) he did not like guns, which was why “all of [his] cases have been aggravated batteries.”

Defendant also contends that defense counsel was ineffective for failing to request the

redaction of the following statements made by one of the detectives during the interview:

(1) “You are caught up knee deep in it” and (2) “It’s no different than if [the other detective]

and I go decide to rob a bank together and I just drive the car and he goes in and shoots a teller

and comes out and says don’t worry about it, just drive.” In defendant’s view, with these

statements, the detective improperly expressed an opinion that defendant “was guilty under an

accountability theory.”

¶ 60 The State responds that each statement that defendant identifies was admissible. Even if

defense counsel provided ineffective assistance by failing to ensure the redaction of the

interview, the State argues defendant was not prejudiced, as the evidence against him was

“strong.”

¶ 61 Prior to trial, defendant filed a motion in limine to bar evidence of his criminal history

unless he testified at trial. At the hearing on this motion, defense counsel argued that

defendant’s videotaped statement should be edited to omit references to prior arrests, police

contacts, and sentences. The prosecutor did not explicitly oppose the motion but simply said:

“Judge, we will—if that’s going to be the Court’s ruling, then we’ll have to figure out a way

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and do that and fast forward. *** But the jury is going to see that we’re fast forwarding

something and—.” Citing People v. Patterson, 2013 IL App (4th) 120287, and People v.

Mefford, 2015 IL App (4th) 130471, the court ruled that it was not inclined to edit defendant’s

statement. The court explained:

“I think that that Mefford case does a nice job of explaining why I think that the

evidence that comes out especially with an interview such as this is admissible for—

not for propensity purposes but also just to sort of explain the relationship between the

defendant and the officers there.”

The court invited defense counsel to distinguish Patterson and Mefford, but defense counsel

never asked the court to revisit this issue.

¶ 62 Defendant failed to preserve his arguments with respect to editing the videotaped

statement. To avoid this procedural bar, defendant frames his challenge under the rubric of

ineffective assistance of counsel. To establish ineffective assistance, a defendant must show

that “(1) counsel’s performance was unreasonable, and (2) but for the error, there is a

reasonable probability that the outcome would have been different.” People v. Theis, 2011 IL

App (2d) 091080, ¶ 39. Failure to satisfy either element defeats an ineffective-assistance claim.

Theis, 2011 IL App (2d) 091080, ¶ 39. For purposes of the prejudice prong, “reasonable

probability” means “a probability sufficient to undermine confidence in the outcome.”

Strickland v. Washington, 466 U.S. 668, 694 (1984). Where a defendant fails to establish

prejudice, the court need not determine whether counsel’s performance was deficient.

Strickland, 466 U.S. at 697.

¶ 63 Even were we to agree that defense counsel was unreasonable in failing to pursue the

redaction of the video, defendant has failed to demonstrate prejudice from the omission. Except

for his conviction of unlawful possession of a firearm by a street gang member, which we

address separately and reverse in the next section of this opinion, the evidence against

defendant was overwhelming.

¶ 64 The jury found defendant guilty of Galicia’s murder and the attempted murders of Casas

and Estrada based on an accountability theory. Section 5-2(c) of the Criminal Code of 2012

(Code) provides that a person is legally accountable for another’s conduct when “either before

or during the commission of an offense, and with the intent to promote or facilitate that

commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the

planning or commission of the offense.” 720 ILCS 5/5-2(c) (West 2012). The State can prove

that a defendant possessed such intent by “present[ing] evidence that either (1) the defendant

shared the criminal intent of the principal, or (2) there was a common criminal design.” People

v. Fernandez, 2014 IL 115527, ¶ 13. As we recently explained:

“Pursuant to the common-design rule, if two or more persons engage in a common

criminal design or agreement, any acts in the furtherance of that common design

committed by one party are considered to be the acts of all parties to the design or

agreement and all are equally responsible for the consequences of the further acts.

[Citations.] Where a defendant voluntarily attaches himself to a group that is bent on

illegal acts and he has knowledge of the group’s design, this supports an inference that

the defendant shared the common purpose and will sustain the defendant’s conviction

for an offense committed by another member of the group.” (Internal quotation marks

omitted.) People v. Garcia, 2019 IL App (2d) 161112, ¶ 27.

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Defendant does not dispute that Perez killed Galicia by firing numerous gunshots at the

occupants of the Impala. Hours after the murder, defendant made statements to the police that

established his accountability for Perez’s actions. For example, defendant admitted that he

knew that members of the Sureño 13 street gang hung out in Little Mexico. He admitted that

he armed himself with a revolver as a precaution before his group drove to Little Mexico. He

admitted knowing that Perez was likewise armed. He admitted that his intent was to “whoop”

somebody, meaning to beat that person. He admitted getting out of the Navigator with Perez

in Little Mexico and approaching the victims’ car. Although defendant repeatedly insisted

during the interview that he contemplated a physical confrontation that did not include the use

of firearms, he was liable for Perez’s acts that were committed in furtherance of their common

design. See Garcia, 2019 IL App (2d) 161112, ¶ 34; People v. Terry, 99 Ill. 2d 508, 515 (1984)

(where a group of men conspired to commit battery and the victim ended up being stabbed to

death, all members of the group were accountable for the murder under the common-design

rule). Defendant’s own words established his liability for murder and attempted murder.

¶ 65 Defendant’s admissions were corroborated by physical evidence. Defendant was arrested

shortly after he and the other members of his group fled on foot from the Navigator. Defendant

told the police that there were two guns in the Navigator: the revolver that he was carrying and

the gun that Perez carried. Consistent with defendant’s statement, when the police searched the

Navigator, they found a .40-caliber Glock 22 on the driver’s seat and a revolver nearby in the

street. The Glock 22 was determined to be the murder weapon.

¶ 66 Defendant’s admissions were also corroborated by Casas and Estrada, who testified that

one of the perpetrators approached the driver’s side of their Impala and the other approached

the passenger side. Defendant’s admissions were further corroborated by Patton’s testimony,

including that (1) her group drove to Little Mexico in a Navigator to “get at somebody,”

(2) defendant and Perez exited the Navigator shortly before shots were fired, and (3) when

defendant and Perez returned to the Navigator, Perez was holding a gun and mentioned having

shot someone in the face.

¶ 67 For the same reasons, the evidence supporting defendant’s conviction of mob action was

overwhelming. Mob action consists of “the knowing or reckless use of force or violence

disturbing the public peace by 2 or more persons acting together and without authority of law.”

720 ILCS 5/25-1(a)(1) (West 2012). In the indictment, defendant was charged with committing

mob action in that he

“knowingly, by the use of violence, disturbed the public peace in the [sic] he, while

acting together with two or more persons and without authority of law, approached an

occupied motor vehicle while armed with a loaded firearm and displaying the firearm,

knocked on a window of said motor vehicle to engage in a physical confrontation with

the persons inside that vehicle.”

Defendant admitted to the police that his group went to Little Mexico to engage in a physical

confrontation. He admitted that both he and Perez were armed, he knocked on the window of

the Impala, and he asked the occupants either “Who is you?” or “What you is?” As Dammon,

the State’s gang expert, testified, “Who is you?” meant “What gang do you belong with?”

Defendant notes that he told the police that he knocked on the window with his hand. This was

consistent with Estrada’s testimony. Casas, however, testified that the person who approached

the passenger side of the Impala knocked with a revolver. At one point during his interview,

defendant told the detectives that, although he thought that his revolver was on safety and he

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did not believe that he fired any shots, it was possible that he did so when he got spooked by

the other gunfire. It is thus apparent that, irrespective of whether defendant knocked on the

window of the Impala with his hand or with his revolver, he was carrying his revolver when

he got out of the Navigator in Little Mexico.

¶ 68 Given the strength of the evidence against defendant, there is no reasonable probability that

the outcome would have been different had the trial court redacted the handful of comments

that defendant identifies from the police interview. There is no reason to believe that the jury

convicted defendant based on his criminal history or because of one of the detective’s isolated

remarks in the course of a lengthy interview. Having failed to demonstrate prejudice,

defendant’s claim of ineffective assistance of counsel fails.

¶ 69 C. Unlawful Possession of a Firearm by a Street Gang Member

¶ 70 Defendant next argues that the State failed to prove him guilty of unlawful possession of a

firearm by a street gang member because it presented no evidence that the Latin Kings were a

“street gang” as defined in section 10 of the Illinois Streetgang Terrorism Omnibus Prevention

Act (Act) (740 ILCS 147/10 (West 2012)).

¶ 71 Defendant was charged with violating section 24-1.8(a)(1) of the Code, which provides:

“(a) A person commits unlawful possession of a firearm by a street gang member

when he or she knowingly:

(1) possesses, carries, or conceals on or about his or her person a firearm and

firearm ammunition while on any street, road, alley, gangway, sidewalk, or any

other lands, except when inside his or her own abode or inside his or her fixed place

of business, and has not been issued a currently valid Firearm Owner’s

Identification Card and is a member of a street gang[.]” 720 ILCS 5/24-1.8(a)(1)

(West 2012).

The statute indicates that the term “street gang” has the meaning ascribed to it in section 10 of

the Act. 720 ILCS 5/24-1.8(c) (West 2012). Section 10 of the Act defines “streetgang” 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.” 740 ILCS 147/10 (West 2012).

“Course or pattern of criminal activity,” in turn, means:

“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 [January 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 or the Criminal Code of 2012.”

740 ILCS 147/10 (West 2012).

According to defendant, although Dammon testified that the Latin Kings were a street gang,

the State failed to establish that the Latin Kings engaged in a “course or pattern of criminal

activity.”

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¶ 72 In their original briefs, the parties noted the split of appellate authority as to whether an

expert’s opinion that an organization is a street gang establishes that element of the offense

where the State does not present specific evidence detailing the organization’s “course or

pattern of criminal activity.” Compare, i.e., People v. Murray, 2017 IL App (2d) 150599, ¶ 83

(explaining that the Second District’s position was that “an expert on gangs may opine on the

ultimate issue of whether an organization is a street gang engaged in a course or pattern of

criminal activity without testifying to specific dates or incidents”), with People v. Lozano, 2017

IL App (1st) 142723, ¶¶ 42, 44 (a “course or pattern of criminal activity” is an element of the

offense, so the failure of the State to introduce evidence proving that element requires reversal).

On May 30, 2018, our supreme court allowed leave to appeal in Murray. We held the instant

appeal in abeyance pending our supreme court’s decision.

¶ 73 Our supreme court issued its decision in Murray on October 18, 2019. People v. Murray,

2019 IL 123289. In a fractured decision with no majority opinion, four justices agreed that the

testimony of the State’s gang expert (incidentally, Dammon) was insufficient to establish that

the Latin Kings were a street gang, where there was no evidence that the Latin Kings engaged

in a “course or pattern of criminal activity,” as that phrase is defined in the Act. Murray, 2019

IL 123289, ¶ 53 (opinion of Neville, J., joined by Burke, J.); see also Murray, 2019 IL 123289,

¶ 63 (Kilbride, J., specially concurring, joined by Karmeier, C.J.). These four justices clarified

that an organization’s “course or pattern of criminal activity” is an element of the offense that

the State must prove. Murray, 2019 IL 123289, ¶ 24 (opinion of Neville, J., joined by Burke,

J.); see also Murray, 2019 IL 123289, ¶ 63 (Kilbride, J., specially concurring, joined by

Karmeier, C.J.). In the absence of such evidence, these four justices agreed to reverse and

vacate the defendant’s conviction of unlawful possession of a firearm by a street gang member.

Murray, 2019 IL 123289, ¶ 53 (opinion of Neville, J., joined by Burke, J.); see also Murray,

2019 IL 123289, ¶ 68 (Kilbride, J., specially concurring, joined by Karmeier, C.J.). The two

justices who specially concurred diverged from Justice Neville’s analysis to the extent that

they believed that it was unnecessary to discuss the Illinois Rules of Evidence. See Murray,

2019 IL 123289, ¶ 59 (Kilbride, J., specially concurring, joined by Karmeier, C.J.) (“The

critical question here is not the propriety of admitting the expert testimony but whether that

testimony is sufficient to establish part of the State’s prima facie case.”).

¶ 74 We allowed the parties to file supplemental briefs addressing the impact of Murray.

Defendant argues that Murray requires the reversal of his conviction of unlawful possession

of a firearm by a street gang member.

¶ 75 The State agrees that Murray requires us to vacate the conviction but argues that this should

be without prejudice to retrial. In so arguing, the State maintains that, in light of Murray,

Dammon’s opinion that the Latin Kings were a street gang “now lacks the required

foundation.” In this sense, the State asserts that the case at bar simply involves “improperly

admitted opinion evidence.” The State notes that, for purposes of determining whether double

jeopardy bars a retrial, a court must consider both the properly admitted evidence and the

improperly admitted evidence to determine whether a rational trier of fact could have found

the elements of the crime proven beyond a reasonable doubt. Thus, the State reasons, because

Dammon’s opinion that the Latin Kings were a street gang was admitted at defendant’s trial,

albeit improperly, that opinion is still part of the mix for purposes of double jeopardy.

Moreover, the State argues that it should not be penalized for trying this case within the

confines of the Second District authority that governed at the time of the trial. In the alternative

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to a retrial, the State asks us to reduce defendant’s conviction to the lesser included offense of

aggravated unlawful use of a weapon without a firearm owner’s identification card (720 ILCS

5/24-1.6(a)(2), (a)(3)(C) (West 2012)).

¶ 76 Our supreme court’s decision in Murray compels us to reverse defendant’s conviction of

unlawful possession of a firearm by a street gang member. Dammon’s testimony in Murray

was indistinguishable from his testimony here. As in Murray, the State failed to introduce any

evidence to establish one of the elements of the offense, that the Latin Kings were a “street

gang” in that they engaged in a “course or pattern of criminal activity.”

¶ 77 We reject the State’s suggestion that it may retry defendant on this charge. Quoting People

v. McKown, 236 Ill. 2d 278, 311 (2010), the State asserts that, “[i]f the evidence presented at

the first trial, including the improperly admitted evidence, would have been sufficient for any

rational trier of fact to find the essential elements of the crime proven beyond a reasonable

doubt, retrial is the proper remedy.” The very next sentence of that opinion, however, states:

“If no rational trier of fact could so find, defendant may not be subjected to a second trial.”

McKown, 236 Ill. 2d at 311. Four justices in Murray agreed that the evidence was insufficient

to sustain the defendant’s guilt of the offense of unlawful possession of a firearm by a street

gang member. As the special concurrence in Murray made clear, the problem was not that

Dammon’s testimony was inadmissible but rather that the State failed to prove the elements of

the offense. See Murray, 2019 IL 123289, ¶ 59 (Kilbride, J., specially concurring, joined by

Karmeier, C.J.) (“The critical question here is not the propriety of admitting the expert

testimony but whether that testimony is sufficient to establish part of the State’s prima facie

case.”). The same defect is present here. To cure this defect, the State seeks a retrial to

introduce evidence that the Latin Kings engaged in a “course or pattern of criminal activity.”

The law is clear, however, that, where the evidence at the first trial was insufficient to support

a conviction, double jeopardy precludes the State from retrying a defendant with “evidence

that it failed to present at the first trial.” People v. Drake, 2019 IL 123734, ¶ 20; see also Burks

v. United States, 437 U.S. 1, 18 (1978) (double jeopardy precludes a second trial once a

reviewing court has found the evidence legally insufficient).

¶ 78 We turn to the State’s alternative request to impose a conviction on a lesser included

offense. Illinois Supreme Court Rule 615(b)(3) (eff. Jan. 1, 1967) empowers a reviewing court

to “reduce the degree of the offense of which the appellant was convicted.” The appellate

court’s authority pursuant to this rule is “broad” and applies “even when the lesser offense is

not charged and the State did not request an instruction on the lesser offense at trial.” People

v. Kennebrew, 2013 IL 113998, ¶ 25. In such a situation, the reviewing court applies the

“charging instrument” approach. Kennebrew, 2013 IL 113998, ¶ 53.

“Under the charging instrument approach ***, the lesser offense need not be a

necessary part of the greater offense, but the facts alleged in the charging instrument

must contain a broad foundation or main outline of the lesser offense. [Citations.] The

indictment need not explicitly state all of the elements of the lesser offense as long as

any missing element can be reasonably inferred from the indictment allegations.

[Citation.] There are two steps to the charging instrument approach. First, the court

determines whether the offense is a lesser-included offense. Next, the court examines

the evidence at trial to determine whether the evidence was sufficient to uphold a

conviction on the lesser offense.” (Internal quotations marks omitted.) Kennebrew,

2013 IL 113998, ¶ 30.

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¶ 79 The indictment alleged that defendant committed the offense of unlawful possession of a

firearm by a street gang member in that he

“knowingly possessed on his person a firearm and firearm ammunition while on any

land, at 2019 Lakeshore Drive, City of Belvidere, at a time when he was not inside his

own abode, or inside his fixed place of business, and the defendant had not been issued

a currently valid Firearm Owner’s Identification Card and the defendant was a member

of a street gang.”

Section 24-1.6(a)(2), (a)(3)(C) of the Code provides:

“(a) A person commits the offense of aggravated unlawful use of a weapon when

he or she knowingly:

***

(2) Carries or possesses on or about his or her person, upon any public street,

alley, or other public lands within the corporate limits of a city, village or

incorporated town, except when an invitee thereon or therein, for the purpose of the

display of such weapon or the lawful commerce in weapons, or except when on his

or her own land or in his or her own abode, legal dwelling, or fixed place of

business, or on the land or in the legal dwelling of another person as an invitee with

that person’s permission, any pistol, revolver, stun gun or taser or other firearm;

and

(3) One of the following factors is present:

* **

(C) the person possessing the firearm has not been issued a currently valid

Firearm Owner’s Identification Card[.]” 720 ILCS 5/24-1.6(a)(2), (a)(3)(C)

(West 2012).

¶ 80 Defendant concedes that aggravated unlawful use of a weapon was a lesser included

offense of unlawful possession of a firearm by a street gang member under the charging

instrument approach. Defendant also concedes that the evidence at trial was sufficient to

uphold a conviction of aggravated unlawful use of a weapon. Defendant nevertheless appeals

to this court’s discretion not to reduce his conviction to a lesser included offense because the

court in Kennebrew acknowledged that its decision involved “a very specific set of facts.”

Kennebrew, 2013 IL 113998, ¶ 25. This comment, however, was in the context of justifying

the supreme court’s decision to apply Rule 615(b)(3) where the State had not asked the

appellate court to do so. Here, the State indeed asks us to invoke our authority pursuant to Rule

615(b)(3). Defendant also cites People v. Guerrero, 2018 IL App (2d) 160920, ¶ 71, in which

we applied Rule 615(b)(3) sua sponte, “[g]iven the unique facts of this case and the compelling

evidence that defendant is guilty of the lesser-included offense.” Here, however, we are not

applying Rule 615(b)(3) sua sponte.

¶ 81 Defendant also contends that the State has not shown that it would be necessary or in the

interests of justice to impose a conviction on a lesser included offense. As our supreme court

noted in Kennebrew, a defendant “has no right to an acquittal when the evidence, while

insufficient to establish the greater offense, is sufficient to establish the lesser offense. To do

otherwise would be unjust.” Kennebrew, 2013 IL 113998, ¶ 43. We thus believe that it serves

the interests of justice to impose a conviction on the lesser included offense here.

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¶ 82 For these reasons, we reverse defendant’s conviction of unlawful possession of a firearm

by a street gang member. Pursuant to Illinois Supreme Court Rule 615(b)(3) (eff. Jan. 1, 1967),

we reduce that conviction to aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(2),

(a)(3)(C) (West 2012)), and we remand the matter to the trial court for sentencing on that

offense.

¶ 83 D. Proportionate Penalties Clause

¶ 84 For his final argument, defendant contends that the confluence of applicable sentencing

statutes—specifically, mandatory firearm enhancements, consecutive sentencing

requirements, and truth-in-sentencing rules—required the trial court to sentence him to a

de facto life sentence. According to defendant, this sentencing scheme prevented the court

from “constructing a sentence that was individualized to him, a young adult with rehabilitative

potential who was not the principal offender in this case.” Defendant maintains that, as applied

to him, the sentences violate the proportionate penalties clause of the Illinois Constitution. See

Ill. Const. 1970, art. I, § 11 (“All penalties shall be determined both according to the

seriousness of the offense and with the objective of restoring the offender to useful

citizenship.”). Defendant asks us to vacate his sentences, to remand the matter for resentencing,

and to hold that the trial court “has discretion not to apply the mandatory enhanced sentencing

provisions applicable here.”

¶ 85 The State responds that defendant forfeited his challenge, given that he failed to fully

develop the record in the trial court and failed to file a postsentencing motion. Further, the

State contends, even considering the merits of defendant’s challenge, defendant’s aggregate

sentence does not violate the proportionate penalties clause.

¶ 86 In People v. Harris, 2018 IL 121932, our supreme court explained that a reviewing court

cannot address an as-applied constitutional challenge in the absence of a developed record that

includes specific findings of fact by the trial court:

“The distinction between facial and as-applied constitutional challenges is critical.

[Citation.] A party raising a facial challenge must establish that the statute is

unconstitutional under any possible set of facts, while an as-applied challenge requires

a showing that the statute is unconstitutional as it applies to the specific facts and

circumstances of the challenging party. [Citations.]

All as-applied constitutional challenges are, by definition, dependent on the specific

facts and circumstances of the person raising the challenge. Therefore, it is paramount

that the record be sufficiently developed in terms of those facts and circumstances for

purposes of appellate review. [Citation.] We have reiterated that

[a] court is not capable of making an as-applied determination of

unconstitutionality when there has been no evidentiary hearing and no findings of

fact. [Citation.] Without an evidentiary record, any finding that a statute is

unconstitutional as applied is premature.” (Emphasis added and internal quotation

marks omitted.) Harris, 2018 IL 121932, ¶¶ 38-39.

The court in Harris rejected the notion that the basic personal information about the defendant

that was discernible from the presentence investigation report provided a basis for evaluating

his as-applied constitutional challenge. Harris, 2018 IL 121932, ¶ 46. The court declined to

remand the matter for an evidentiary hearing but noted that the defendant could pursue his

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claim either in a postconviction petition or in a proceeding pursuant to section 2-1401 of the

Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)). Harris, 2018 IL 121932, ¶ 48.

¶ 87 On appeal, in support of his as-applied proportionate penalties challenge, defendant

emphasizes his relative youth, his difficulty escaping gang influences, his mental health issues,

and his rehabilitative potential. Much of the information that he cites comes from his

presentence investigation report. Defendant maintains that his circumstances “made him

vulnerable to the same type of recklessness, impulsivity, and heedless risk-taking” as juvenile

offenders who are given special consideration at sentencing.

¶ 88 At the sentencing hearing, however, defendant did not cite his individual characteristics as

the basis for his proportionate penalties challenge. Nor did he analogize himself to a juvenile

offender. Furthermore, he did not argue, as he does on appeal, that the trial court should have

the discretion to decline to impose any of the statutory sentence enhancements. Defense

counsel instead argued, in five sentences, that the firearm enhancement should apply only to

defendant’s murder conviction. In so arguing, counsel did not specify whether defendant was

presenting an as-applied challenge to the sentencing scheme versus a facial challenge. Given

that defendant did not rely on his individual characteristics as the basis for his argument, the

court did not hold an evidentiary hearing on the proportionate penalties challenge and did not

make findings of fact before rejecting defendant’s argument. Defendant did not file a

postsentencing motion.

¶ 89 Under these circumstances, the record was not sufficiently developed for us to consider the

argument that defendant advances on appeal. Harris compels us to abstain from addressing

defendant’s premature as-applied constitutional challenge to his sentence. See also People v.

Vega, 2018 IL App (1st) 160619, ¶ 57 (following Harris and finding that an as-applied

proportionate penalties challenge was premature where (1) the defendant did not raise his claim

in the trial court, (2) the trial court did not hold an evidentiary hearing on the matter, and (3) the

trial court did not make findings of fact with respect to the issue). Consistent with Harris, we

do not intend for our disposition to preclude defendant from advancing his claim through other

available proceedings.

¶ 90 III. CONCLUSION

¶ 91 For the reasons stated, we reverse defendant’s conviction of unlawful possession of a

firearm by a street gang member. Pursuant to Illinois Supreme Court Rule 615(b)(3) (eff. Jan.

1, 1967), we reduce that conviction to aggravated unlawful use of a weapon (720 ILCS 5/24-

1.6(a)(2), (a)(3)(C) (West 2012)), and we remand the matter to the trial court for sentencing on

that offense. We affirm the judgment of the circuit court in all other respects.

¶ 92 Affirmed in part and reversed in part.

¶ 93 Cause remanded with directions.

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