{ "id": 2584645, "name": "People of the State of Illinois, Plaintiff-Appellee, v. Jesse Pena, Defendant-Appellant", "name_abbreviation": "People v. Pena", "decision_date": "1966-06-13", "docket_number": "Gen. No. 50,568", "first_page": "305", "last_page": "316", "citations": [ { "type": "official", "cite": "72 Ill. App. 2d 305" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "192 NE2d 920", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "28 Ill2d 505", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363068 ], "year": 1963, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0505-01" ] }, { "cite": "187 NE2d 692", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "26 Ill2d 582", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5356820 ], "year": 1963, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0582-01" ] }, { "cite": "64 NE2d 462", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1946, "opinion_index": 0 }, { "cite": "392 Ill 252", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2515653 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/ill/392/0252-01" ] }, { "cite": "208 NE2d 670", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1965, "opinion_index": 0 }, { "cite": "60 Ill App2d 22", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2604249 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/60/0022-01" ] }, { "cite": "165 NE2d 296", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "18 Ill2d 489", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5327943 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill-2d/18/0489-01" ] }, { "cite": "199 Ill 173", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3263138 ], "opinion_index": 0, "case_paths": [ "/ill/199/0173-01" ] }, { "cite": "307 Ill 611", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5092380 ], "opinion_index": 0, "case_paths": [ "/ill/307/0611-01" ] }, { "cite": "204 NE2d 777", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1965, "opinion_index": 0 }, { "cite": "55 Ill App2d 270", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5284488 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/55/0270-01" ] }, { "cite": "52 NE2d 715", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "385 Ill 344", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5304785 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/ill/385/0344-01" ] }, { "cite": "111 NE2d 326", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1953, "opinion_index": 0 }, { "cite": "414 Ill 441", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314070 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/ill/414/0441-01" ] }, { "cite": "205 NE2d 749", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1965, "opinion_index": 0 }, { "cite": "56 Ill App2d 159", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5285428 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/56/0159-01" ] } ], "analysis": { "cardinality": 807, "char_count": 17913, "ocr_confidence": 0.607, "pagerank": { "raw": 2.0853622798907374e-07, "percentile": 0.7596023938075154 }, "sha256": "161a39da629bd7985f7b2b7061fdc8cb2960523b34754bc04ddcd03d3bc6d39a", "simhash": "1:a522f7dd3a0c09e1", "word_count": 3132 }, "last_updated": "2023-07-14T17:13:54.687599+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People of the State of Illinois, Plaintiff-Appellee, v. Jesse Pena, Defendant-Appellant." ], "opinions": [ { "text": "MR. JUSTICE MURPHY\ndelivered the opinion of the court.\nIn a bench trial on a murder indictment, Jesse Pena, 17 years of age, was found guilty of voluntary manslaughter under section 9-2 (b) of the Criminal Code (Ill Rev Stats 1965, c 38). He was sentenced to the penitentiary for a term of 5 to 15 years. On appeal, defendant contends that his conviction should be reversed because he acted in self-defense.\nIn summary, the record shows that two groups of boys were in a street altercation, and defendant shot and killed Dragan Petrovich, one of the group known as \u201cJunior Spartans,\u201d and wounded another, Jesse Perez. It was stipulated that the cause of death of the deceased was a gunshot wound, and that no alcohol was found in the blood of the deceased.\nCriminal Code provisions in point are:\n\u201c\u00a7 9-2. Voluntary Manslaughter.] . . .\n\u201c(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.\u201d\nand Article 7 \u2014 Justifiable Use of Force; Exoneration, which provides:\n\u201c\u00a7 7-1. Use of Force in Defense of Person.] A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other\u2019s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.\u201d\nThe evidence for the State included two eyewitnesses and a police officer.\nThe first witness for the State, Jesse Perez, 19 years of age, testified that on the evening of November 28, 1964, the \u201cJunior Spartans,\u201d Dragan Petrovich, Jesse Perez, Angelo Flores, Salvadore Tinoco and a boy called \u201cCotton Head,\u201d had spent some time driving around in Petrovich\u2019s 1959 white Chevrolet. At about 11:45, they parked the car on 18th Street near Newberry Street. They got out and walked across the street toward a nearby restaurant. As they reached the other side of the street, they saw a group of boys, which included the defendant, Jesse Pena, Steven Tienda (Buzzy), Raymond Juarez, Robert Paloma and James Daniels. \u201cCotton Head\u201d said something to \u201cBuzzy,\u201d and Perez heard someone say, \u201cJesse, forget it.\u201d Perez then saw some boys running.\nPerez further testified that he was standing quite close to defendant when he heard a shot. He felt blood on his neck and fell to the ground. \u201cI kneel down and he took another shot at me. That\u2019s when I saw the gun on him [Jesse Pena], . . . three feet away from me. ... I just tried to get up and run. I couldn\u2019t run. He took another shot. He shot at me twice. After I got hit the first time he shot at me twice. . . . All I remember is somebody picked me up and took me in a squad car.\u201d\nOn cross-examination, Perez testified that he and the defendant were not exactly friendly but they had never had an argument. They had delivered papers together two or three years before. Perez dropped out of school when he was in the 8th grade.\nThe second witness for the State, Salvadore Tinoco, 17 years of age, knew the defendant, Jesse Pena, and the deceased, Dragan Petrovich. He had been in the car with Petrovich, Perez, Flores and \u201cCotton Head,\u201d and when they walked across the street, \u201cCotton said, T want to talk. I want to say something to Buzzy,\u2019 Steven Tienda. ... So I turned around and I said, \u2018Forget it.\u2019 . . . Well, I heard a shot. I turned around. Jesse was going down, Jesse Perez. So I went towards Jesse. Pena, he shot again at Jesse. So then he turned around towards me and Dragan and pointed towards me. I dived. He took a shot. I don\u2019t know where he hit Drag-an. So then he took another shot. I heard the other shot. Then he came towards me. I was on the ground. He shot. But I jumped up. He missed me. . . . Jesse Pena faced towards Dragan and shot again. Dragan was in the middle of the street, running into . . . the alley. He shot at Dragan. Then I picked up Jesse. I was running. I seen Dragan when he got hit again. I don\u2019t know if he hit him then. . . . Jesse Pena re-loaded and started shooting again.\u201d Tinoco heard the gun fired about twelve times. Before the gun was fired, he had no argument with Jesse Pena or anyone.\nOn cross-examination, he testified he had quit high school while in his first year and was working at the time of the occurrence. He did not hear defendant say anything, nor Steven Tienda. \u201cI didn\u2019t hear him say anything, ... I didn\u2019t hear Cotton say anything,\u201d and when the witness said, \u201cForget it,\u201d he intended for \u201cCotton to forget what he was talking or saying.\u201d\nThe last witness for the State, Police Officer John Serafini, testified that he and defendant\u2019s father went to the home of defendant\u2019s brother, where they found defendant. \u201cJesse stated he had been involved in a fight with a couple of boys; that he shot two of them. I asked Jesse where the gun was. At first he said he had thrown the gun away immediately following the shooting, but a few minutes later he said, \u2018It\u2019s underneath the back porch,\u2019 \u201d where it was found.\nThe evidence for the defense included the defendant and three eyewitnesses.\nDefendant testified that earlier in the evening he had been to a party, and he left with Steven Tienda (Buzzy), Raymond Juarez, Robert Paloma, James Daniels and Sylvia Guerra. As they were walking down 18th Street, a white 1959 Chevrolet passed by. One of the boys in his group said, \u201c \u2018There goes the Junior Spartans.\u2019 We said we might as well hurry up because they are always looking for trouble. . . . They were supposed to be looking for Steven Tienda and Raymond Juarez. . . . The car stopped, to cross the street. Jesse Perez and Drag-an Petrovich and Salvadore Tinoco and \u201cCotton Head\u201d and Butch Flores came out of the car. They came up to Buzzy. Cotton Head said, \u2018We have something to settle.\u2019 He hit Buzzy. Then Buzzy said he didn\u2019t want to have no quarrel. So Chava, Salvadore Tinoco, came and hit him and threw his cigarette in his face. He said, \u2018Let\u2019s get this over with.\u2019 They were swearing. . . . all the boys had their hands in their pockets and Buzzy was scared and so was I. And I pulled out the gun and said . . . \u2018Not so many of you on Buzzy. Leave him alone.\u2019 Jesse got around me. He was coming to jump me from behind. I turned around and shot to the side. I didn\u2019t know I hit him. He kept on coming. Dragan and Salvadore and the other two boys were coming to the front of me. So I got scared. I shot up in the air and at the side of them. I didn\u2019t know I hit nobody because they all turned around and ran. That is when we ran, too.\u201d He did not intend to hit anyone and did not shoot at \u201canybody running away.\u201d He shot about five times and did not aim the pistol at anybody in particular and did not intend to hit Dragan. He reloaded the gun after he had left the scene, about a mile away.\nDefendant\u2019s witnesses, Robert Paloma, Steven Tienda (Buzzy), and Raymond Juarez, substantially corroborated defendant\u2019s testimony that the Junior Spartans were the aggressors, and that defendant interceded on behalf of Tienda (Buzzy). Paloma testified that Tinoco and \u201cCotton Head\u201d were the ones that hit Tienda. \u201cJesse said to leave him alone. They started coming towards him. . . . Perez, Salvadore, and those others. They stepped towards Jesse Pena. . . . Jesse Pena pulled out his gun. He started waving it. He said . . . to get back. They kept on coming. . . . Well, that is when I heard the shots.\u201d He heard about three shots, and there were words exchanged before the shooting. Tienda (Buzzy) also testified that Perez and \u201cCotton Head\u201d were the aggressors. \u201cCotton Head\u201d hit Tienda in the mouth, and Tinoco threw a cigarette in his face. Defendant interceded, and they told him to keep out of it \u201c \u2018or else we will take care of you too.\u2019 . . . Then they started going towards Jesse. . . . that\u2019s when Jesse pulled out a gun and told them to get back. They kept on coming. Jesse fired from the back.\u201d He heard about four shots fired, and he saw Pena shoot when the boys were running. Juarez testified that \u201cBuzzy said T don\u2019t want to fight you.\u2019 Jesse Pena then said \u2018Get out of here,\u2019 and pulled a gun. Then, Dragan said \u2018Go ahead and shoot me/ Someone said, \u2018Go ahead and shoot. See how brave you are/ So Pena shot.\u201d\nDefendant\u2019s principal contention is that \u201cit was reasonable under all the circumstances for the defendant to believe that the use of deadly force was necessary for his own defense.\u201d People v. Williams, 56 Ill App2d 159, 205 NE2d 749 (1965); People v. Bush, 414 Ill 441, 111 NE2d 326 (1953); People v. Turner, 385 Ill 344, 52 NE2d 715 (1944); People v. Evrard, 55 Ill App2d 270, 204 NE2d 777 (1965).\nIn People v. Williams, 56 Ill App2d 159, 205 NE2d 749 (1965), a cabdriver got out of a cab and attempted to help an old man who was being severely beaten by a group of boys. The boys threw a cement block and a brick at defendant\u2019s cab, causing damage to the right door. The defendant fired two shots in the direction of the boys, and one was killed. The Second Division of this court reversed a conviction of involuntary manslaughter. In discussing the elements which justify the use of force in the defense of his person, the court said (p 165) :\n\u201cThese elements are: (1) that force is threatened against a person; (2) that the person threatened is not the aggressor; (3) that the danger of harm is imminent; (4) that the force threatened is unlawful; (5) that the person threatened must actually believe: (a) that a danger exists, (b) that the use of force is necessary to avert the danger, (c) that the kind and amount of force which he uses is necessary; and (6) that the above beliefs are reasonable. There is a further principle involved, when, as in the instant case, the defendant uses deadly force. This principle limits the use of deadly force to those situations in which (a) the threatened force will cause death or great bodily harm or (b) the force threatened is a forcible felony.\u201d\nAfter examining the facts of the Williams case in the light of the foregoing elements, the court further said (p 169):\n\u201cIt is apparent that the throwing of bricks at defendant could have caused death or great bodily harm if defendant was struck by one of them. Defendant was justified in using deadly force to protect his person.\n\u201cIn this case we only hold that when a person comes to the aid of another who has been the victim of a battery, said person has the right to use deadly force, if the parties who were the assailants attack him and if the other requirements of self-defense are met. The circumstances of this case present a situation in which we approach the minimum borderline of self-defense. The circumstances are such, however, that the judgment must be reversed.\u201d\nIn People v. Bush, 414 Ill 441, 111 NE2d 326 (1953), defendant Bush was convicted of murder. Bush, age 20, and his girl friend were approached on the street b'y another group of boys, and an argument ensued. The police broke up the argument. Later,, as the boy left the home of his girl friend, \u201che was surrounded menacingly by the same group of youngsters estimated in number from ten to nineteen.\u201d By some mysterious process, a knife was passed into his hand, and \u201cAfter I got the knife the Sterling boys and the rest of the boys started crowding me and I was cutting them to keep them off, I was cutting at all of the boys \u2014 not any particular one.\u201d In holding that the slaying by defendant was a justifiable act of self-defense, the Supreme Court said (p 444):\n\u201cThe defendant was where he had a lawful right to be and it was not his duty to flee, but being assaulted first he had a right to stand his ground and if reasonably apprehensive of serious injury was justified in taking his assailant\u2019s life. (People v. Durand, 307 Ill 611.) We have repeatedly held that one who is unlawfully assaulted and put in apparent danger of his life or of great bodily harm need not attempt to escape but may repel force with force, even to the taking of assailant\u2019s life, if necessary or apparently so, to prevent bodily harm. Hammond v. People, 199 Ill 173.\u201d\nThe State contends that \u201cunder the circumstances of this case, it was unreasonable for the defendant to believe that the use of deadly force was necessary.\u201d People v. Jordan, 18 Ill2d 489, 165 NE2d 296 (1960); People v. Millet, 60 Ill App2d 22, 208 NE2d 670 (1965); People v. Golson, 392 Ill 252, 64 NE2d 462 (1946).\nIn People v. Jordan, the Supreme Court affirmed a judgment of murder as against a plea of self-defense and said (p 492):\n\u201cIn order that a killing be justified on the grounds of self-defense it must appear that the danger was so urgent and pressing that in order to save the defendant\u2019s own life or to prevent his receiving great bodily harm the killing of the other was absolutely necessary and it must appear also that the person killed was the assailant or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given. . . . Whether a killing is justified under the law of self-defense is always a question of fact to be determined by the jury under proper instructions.\u201d\nIn People v. Millet, 60 Ill App2d 22, 208 NE2d 670 (1965), defendant was convicted of voluntary manslaughter. Defendant had been warned that the decedent had a gun in his trunk; that decedent said \u201che would blow defendant\u2019s head off and would kill him\u201d; and that defendant, opened the trunk of his car and fumbled inside for some object. In affirming the conviction, the court said (p 30) :\n\u201c. . . we further find, contrary to defendant\u2019s contention, that the fear experienced by defendant was not so great that defendant could take the life of another. . . . True, there is no duty on a defendant to retreat from a wrongdoer. . . . Defendant, however, in the instant situation, affirmatively approached the deceased. He set the stage for the type of violation found in section 9 (2) (b) of the Code. We hold therefore, that there was sufficient evidence introduced that defendant, despite his fear of bodily harm, acted unreasonably under the circumstances.\u201d\nIn a bench trial in a criminal case, a reviewing court, in view of the opportunities of observation available to the trial court, will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to a defendant\u2019s guilt. People v. Woods, 26 Ill2d 582, 585, 187 NE2d 692 (1963); People v. Boney, 28 Ill2d 505, 510, 192 NE2d 920 (1963).\nIt is not controverted that the decedent and his group were the aggressors or that \u201cCotton Head\u201d and Perez intended to assualt Tienda (Buzzy), and that defendant came to his aid. Before entering judgment, the trial court reviewed the testimony at length and defendant\u2019s defense that he acted justifiably. The court remarked, \u201cThere is no evidence any of them had any deadly weapons or that any of them used any great force. The only one who did anything real mean and vicious was Tinoco, who threw the cigarette in his face. Jesse Pena pulled the gun and he says he tried to scare them, first. But he fired and he kept firing after they began to run. That appears to be the evidence beyond a reasonable doubt. This Court finds Pena acted as follows: He is covered by section 9-2B of Chapter 38 of the Criminal Code, which provides \u2018A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.\u2019 His belief certainly was unreasonable. He was not the aggressor, however. He didn\u2019t especially want to kill Dragan Petrovich, but intended to shoot the boys he felt were looking for him, which they were. Therefore I find Jesse Pena guilty of the lesser included offense of voluntary manslaughter.\u201d\nWe conclude the evidence here supports the trial court\u2019s determination that defendant acted unreasonably under the circumstances, and that the proof was sufficient to support the conviction of voluntary manslaughter. Therefore, we will not disturb the finding of the trial court.\nDefendant also contends that \u201cprobation would have been adequate under the circumstances for the defendant so as to best effect his rehabilitation.\u201d (People v. Evrard, 55 Ill App2d 270, 204 NE2d 777 (1965).) The record shows that before sentencing defendant, the trial court considered at length the background of the defendant and the testimony of a representative of a local church and interviewed defendant\u2019s father and mother, and concluded that the sentence given him was proper under the circumstances and that defendant \u201cneeds some punishment, some serious punishment. His own father couldn\u2019t handle him.\u201d We find no reason here for this court to reduce the sentence imposed by the trial court.\nFor the reasons given, the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.\nAffirmed.\nKLUCZYNSKI, P. J. and BURMAN, J., concur.", "type": "majority", "author": "MR. JUSTICE MURPHY" } ], "attorneys": [ "Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.", "Daniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel Flaum and Robert A. Romanoff, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Plaintiff-Appellee, v. Jesse Pena, Defendant-Appellant.\nGen. No. 50,568.\nFirst District, First Division.\nJune 13, 1966.\nGerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.\nDaniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel Flaum and Robert A. Romanoff, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0305-01", "first_page_order": 315, "last_page_order": 326 }