{ "id": 1472343, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANCISCO MENA, Defendant-Appellant", "name_abbreviation": "People v. Mena", "decision_date": "2002-03-29", "docket_number": "No. 1\u201498\u20141326", "first_page": "579", "last_page": "589", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 579" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "752 N.E.2d 614", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "323 Ill. App. 3d 554", "category": "reporters:state", "reporter": "Ill. 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FRANCISCO MENA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McNULTY\ndelivered the opinion of the court:\nA jury found defendant, Francisco Mena, guilty of first degree murder. The trial court found that defendant committed the murder with exceptional brutality and on that basis the court imposed an extended-term sentence. On appeal defendant contends that the trial court erred by refusing to instruct the jury on second degree murder and prosecutorial misconduct deprived him of a fair trial. We reject both arguments and affirm the conviction. Defendant also challenges the extended-term sentence because the court based it on a factual finding on an issue never submitted for jury determination. We agree and therefore we modify the sentence.\nAround 3 a.m. on June 22, 1996, police officers arrived at the scene of a car collision. Gilberto Arteaga and Santos Chavez stood outside Arteaga\u2019s car. Arteaga\u2019s car sustained major damage to its front end, especially on the driver\u2019s side. About 300 feet away another car with major damage had come to rest at the side of the street. Police found the car\u2019s owner, Hector Saldana, facedown outside the passenger side of the car, with blood all around his head. He had died from multiple blunt force injuries.\nBy a fence near the crash site, police found a jack covered in blood. A forensic examiner found that the pattern of marks on Saldana\u2019s body appeared to match the pattern of ratchets on the jack.\nAn hour after the police arrived, Freddie Ayala and defendant came to the scene of the collision. An officer noticed that Ayala\u2019s shoes had spots that looked like blood, and defendant\u2019s shoes looked wet. Based on information gathered from others at the scene, an officer arrested Ayala and defendant. Another officer later remembered that he had seen defendant riding in Arteaga\u2019s car around 1 a.m. that night, two hours before the collision.\nAfter 6:30 p.m. that day, about 14 hours after the arrest, defendant gave a statement recorded by a court reporter. Defendant said that on June 21, 1996, around 5 p.m., he went cruising with Arteaga, a fellow member of the Latin Kings. They picked up Ayala. While Ar-teaga drove on a local street, another car rammed the back of Artea-ga\u2019s car. The occupants of the other car flashed signs indicating membership in the Two-Six gang, rivals of the Latin Kings. The collision flattened Arteaga\u2019s rear tire. Arteaga drove on it to a nearby alley.\nAccording to the court-reported statement, Santos Chavez then joined defendant, Arteaga and Ayala. After they changed the tire, the four of them got in the car and went out looking for a Two-Sixer\u2019s car to ram. They saw such a car and chased it. It led them to a street where they saw many other Two-Sixers. Arteaga quickly turned his car and headed back east, toward Latin Kings territory. He saw a car following his.\nDefendant said that Arteaga made a U-turn and headed west. The eastbound car that had followed them then crossed the center line and hit Arteaga\u2019s car, causing extensive damage. Defendant and Ayala jumped out of the car. Defendant told Arteaga to open the trunk. Defendant took a jack from the trunk and ran with Ayala to the other car, where they found Saldana lying in the front seat. Defendant said, 1 \u2018 [M]otherfucker, what you doing?\u201d When Saldana did not respond defendant struck him with the jack. Saldana still made no response. Defendant pulled him from the car and threw him on the ground. Defendant struck Saldana\u2019s head twice with the jack, and Ayala jumped on Saldana. According to defendant\u2019s statement, they attacked Saldana because he had wrecked Arteaga\u2019s car.\nDefendant ran off and washed the blood off his clothes as well as he could. He went home and changed clothes, then threw his clothes in a trash can in a nearby alley. He then went over to Ayala\u2019s apartment. They returned to the collision site to check on Arteaga and Chavez.\nAlthough defendant had no complaints about police treatment, he said he had not had any sleep the prior night. Because he worked on June 21 before meeting Arteaga, he had not slept in 36 hours. Police did not find defendant\u2019s clothes in the trash can where he said he threw them.\nA grand jury indicted defendant for first degree murder. The charging instrument does not mention any facts that might warrant a death sentence or an extended-term sentence. The indictment does not charge defendant with exceptionally brutal and heinous conduct indicative of wanton cruelty.\nAt trial the prosecution first presented Saldana\u2019s sister, who testified that Saldana was 18 and had been working as a deliveryman since he moved from Mexico about a year before his death. Although the testimony had established the length of time Saldana lived in Chicago, the questioning continued:\n\u201cQ. Do you remember when it was that Hector came from Mexico?\nA. He came back a day after my mother passed away, June 20th of \u201995.\nQ. Did he come for the funeral?\nA. Yes.\nQ. After the funeral, is that when he decided to stay here?\nA. Yes, he did.\u201d\nThe medical examiner found two large injuries to the back of Sal-dana\u2019s head. Each blow fractured the skull. Seven or eight back injuries showed the pattern of the jack. Extensive hemorrhaging under the scalp showed that Saldana was alive when the jack struck his head. Beneath the brain, the bottom of the skull also had been fractured. The medical examiner said that fracture proved massive force had been used. The injuries were not consistent with injuries caused by car accidents.\nThe trial court refused defendant\u2019s proposed instruction on second degree murder.\nAt the beginning of the closing argument, the prosecutor stressed the loss society suffered from Saldana\u2019s murder, \u201c[bjecause of the insanity that has been brought about by street gangs.\u201d After discussing the evidence, the prosecutor invited the jury to tell gangs the streets \u201cdon\u2019t belong to the gangs.\u201d The jurors had \u201ca phenomenal opportunity to send that message.\u201d\nThe defense emphasized the lack of physical evidence tying defendant to the crime scene and defendant\u2019s sleepless state when he made the court-reported confession.\nIn rebuttal the prosecution returned to the subject of gangs:\n\u201c[Defendant] chose to be a Latin King. And, ladies and gentlemen, let\u2019s not make any mistake about it. We are not asking you to convict him because he is a Latin King gang member. We are asking you to convict him because he is a cold-blooded murderer.\u201d\nThe prosecutor described the scene:\n\u201cSaldana is lying on the ground, choking on his last breath of life, drowning in his blood.\u201d\nLater, he added:\n\u201cYou know, it\u2019s amazing they never mention the rights of Hector Saldana. What about his rights? There was no one there to protect Hector\u2019s rights. This guy behind me was his judge, his jury, and his executioner.\n* * *\nCounsel mentions our burden of proof in his argument. It is as if he expects [us] to cower under our table.\nWell, ladies and gentlemen, that is our burden of proof, proof beyond a reasonable doubt. We embrace that burden. We welcome that burden.\nRemember, it is proof beyond a reasonable doubt. It is not proof beyond all doubt. It is not proof beyond a shadow of a doubt. It is proof beyond a reasonable doubt. It is the same burden that juries in this building and juries across this country use to convict the likes of [defendant],\n* *\nHector\u2019s sister was the very first person that you heard from during the course of this trial.\nThanks to [defendant], Hector will be forever 18 in [his family\u2019s] hearts and their mind[s].\u201d\nThe jury found defendant guilty of first degree murder. Because the judge found the murder brutal and heinous, he sentenced defendant to an extended term of 90 years in prison.\nDefense counsel failed to file an appellate brief. We dismissed the appeal for want of prosecution. Many months later, defendant contacted a court clerk, seeking information about his appeal. The clerk told him the court dismissed the appeal for want of prosecution. Defendant filed a petition for postconviction relief. The trial court dismissed the petition and defendant appealed. Defendant later moved this court to vacate the dismissal of the direct appeal. We granted the motion. We dispose of the appeal from denial of the postconviction petition by separate opinion. Here, we address the reinstated direct appeal.\nI\nDefendant argues first that the court committed reversible error by denying his request for an instruction on second degree murder.\n\u201cWhether to tender a jury instruction on voluntary manslaughter is within the discretion of the trial court. [Citation.] This discretion, however, is controlled by clear guidelines from this court. If there is evidence in the record that, if believed by the jury, would reduce a crime from murder to manslaughter, a defendant\u2019s request for a manslaughter instruction must be granted. [Citations.] Defendant has the burden of proving there is at least \u2018some evidence\u2019 of serious provocation or the trial court may deny the instruction.\n* * *\n*** [T]he provocation must be proportionate to the manner in which the accused retaliated. The crime is murder when a defendant attacks a victim with violence out of all proportion to the provocation. This is especially true if the homicide is committed with a deadly weapon.\u201d People v. Austin, 133 Ill. 2d 118, 124-27, 549 N.E.2d 331 (1989).\nHere, the prosecution presented some evidence of serious provocation: according to defendant\u2019s statement, which constituted the principal evidence against him, Saldana chased Arteaga and drove across the center line to ram the front of Arteaga\u2019s car. The photographs of the scene show the result of a very forceful collision in which Arteaga\u2019s passengers, including defendant, faced serious danger.\nDefendant said that in response he grabbed a jack and ran to Saldana\u2019s car, where he found Saldana lying, unresponsive, across the front seat. He dragged him from the car and bashed his head with such force that he fractured the base of Saldana\u2019s skull. Then defendant bashed Saldana\u2019s head again.\nAlthough the provocation here cannot be considered slight, the response to the provocation is disproportionate, especially because Sal-dana lay injured and unresponsive before defendant began hitting him. We cannot say that the trial judge abused his discretion by denying the second degree murder instruction.\nII\nNext, defendant claims that prosecutorial misconduct deprived him of a fair trial. He admits that he waived the issue by failing to object to the misconduct at trial, but he asks the court to review the issue for plain error. Under the plain error exception to the waiver doctrine, this court conducts a limited review of the record to determine whether the evidence was closely balanced or the errors were of such magnitude that they deprived the defendant of a fundamentally fair trial. People v. Mitchell, 155 Ill. 2d 344, 354, 614 N.E.2d 1213 (1993).\nWhile the prosecution has presented less than overwhelming evidence of defendant\u2019s guilt, we cannot characterize the evidence as closely balanced. An officer saw defendant in Arteaga\u2019s car two hours before the assault, and defendant arrived at the crime scene about one hour after police arrived. Defendant\u2019s confession explains both of these facts and fits well with the evidence at the crime scene. We note that the confession provided police no new information, apart from the means of disposing of the bloody clothes, and police did not find the clothes in the place described in the confession. But the court-reported confession shows that defendant narrated most of his responses to open-ended questions. The transcript does not show any special prompting of the answers, just as it does not show the interrogation process over the 14 hours defendant spent in custody leading up his confession. In light of the consistency of the credible confession with all of the other evidence presented, we hold that the evidence is not closely balanced.\nThus, we review the alleged errors only under the second prong of the plain error rule. Even when a defendant has waived objections, this court must remedy error when necessary to preserve the integrity of legal proceedings. People v. Vargas, 174 Ill. 2d 355, 363, 673 N.E.2d 1037 (1996). \u201cA reviewing court will grant relief under the second prong of the plain error rule only if the error is so fundamental to the integrity of the judicial process that the trial court could not cure the error by sustaining an objection or instructing the jury to disregard the error.\u201d Vargas, 174 Ill. 2d at 363-64.\nDefendant argues that prosecutors engaged in three separate kinds of misconduct. They improperly dwelt on the sufferings of Saldana and his family, they appealed to jurors\u2019 fears of street gangs, and they minimized the burden of proof.\nOn direct examination of Saldana\u2019s sister, the prosecutor asked for more specific information about Saldana\u2019s move to Chicago about a year before the murder. The objectionable question elicited the irrelevant and provocative testimony that Saldana\u2019s mother had died about one year before Saldana died. See People v. Blue, 189 Ill. 2d 99, 129, 724 N.E.2d 920 (2000). But a sustained objection to the question would have prevented the elicitation of the prejudicial testimony and the prosecutor\u2019s two further references to the funeral of Saldana\u2019s mother.\nA sustained objection also could have alleviated prejudice from improper comments in closing regarding the sufferings and memories of Saldana\u2019s family. See People v. Childress, 158 Ill. 2d 275, 293, 633 N.E.2d 635 (1994). Comments on the victim\u2019s rights, similar to those at issue here, did not mandate reversal in People v. Smith, 152 Ill. 2d 229, 268-69, 604 N.E.2d 858 (1992). No evidence supported the prosecutor\u2019s argument that Saldana drowned in his own blood. But the exceptionally violent beating, fracturing both the top and the base of Saldana\u2019s skull with a blow struck while Saldana was alive, lends itself to descriptions yet more lurid than the description the prosecutor posed. The remark about drowning is not likely to have been a material factor in the conviction. See People v. Doran, 256 Ill. App. 3d 131, 137, 628 N.E.2d 260 (1993). The improper remarks about the sufferings of Saldana and his family do not amount to plain error.\nThe prosecutor began closing argument by decrying \u201cthe insanity *** brought about by street gangs.\u201d He later pied for the jury to send a message to the gangs. The prosecutor also listed the wrong choices defendant made, starting with his choice to join a gang. Defendant argues that these remarks deprived him of a fair trial, just as the remarks in People v. Fluker, 318 Ill. App. 3d 193, 742 N.E.2d 799 (2000), deprived that defendant of a fair trial. We disagree.\nThe case for the prosecution in Fluker rested on the out-of-court identifications of the defendant as the offender by two eyewitnesses. Both of the witnesses retracted the identifications at trial. The prosecutor, choosing to mislead the jurors, said:\n\u201cThe only issue in this case is not is this a mistaken identity ***. The only issue is who do you want to control our criminal justice system? ***\n* * *\n*** Do you want *** the Four Corner Hustlers to control our society?\u201d Fluker, 318 Ill. App. 3d at 203.\nThe trial court compounded the error by overruling prompt, appropriate objections.\nThe prosecutor here did not substitute any improper, irrelevant issue for the issue properly before the jury. The comments on gangs here were also less pervasive than the comments in Fluker. The comments here resemble the comments in People v. Morgan, 306 Ill. App. 3d 616, 632-33, 713 N.E.2d 1203 (1999), more closely than the comments in Fluker. In Morgan, the appellate court held that the trial court cured prejudice from remarks on gangs by sustaining the defendant\u2019s prompt objections. We cannot say that the comments on gangs here deprived defendant of a fundamentally fair trial.\nDefendant also objects to the prosecutor\u2019s comments on the burden of proof. The prosecutor made light of defense counsel\u2019s emphasis on the burden, saying that he would not \u201ccower under [the] table.\u201d The prosecutor then attempted to define the burden of proof beyond a reasonable doubt, arguing that the prosecution need not prove guilt beyond all doubt and that juries across the country find evidence in other cases sufficient to meet the burden. The appellate court has repeatedly held similar arguments improper. See People v. Jones, 241 Ill. App. 3d 228, 234, 608 N.E.2d 953 (1993); People v. Frazier, 107 Ill. App. 3d 1096, 1102, 438 N.E.2d 623 (1982); People v. Martinez, 76 Ill. App. 3d 280, 285, 395 N.E.2d 86 (1979). However, the appellate court has also held that by sustaining objections and properly instructing the jury, the trial court can ameliorate the prejudicial effect of such remarks. People v. Wielgos, 220 Ill. App. 3d 812, 820-21, 581 N.E.2d 298 (1991). Again, we cannot say that the improper comments on the burden of proof deprived defendant of a fundamentally fair trial.\nEven considering the closing argument as a whole, we cannot say that the comments \u201cwere so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten deterioration of the judicial process.\u201d People v. Albanese, 104 Ill. 2d 504, 518, 473 N.E.2d 1246 (1984). Accordingly, we affirm the conviction for first degree murder.\nIll\nAfter the jury found defendant guilty of first degree murder, the trial court, at sentencing, found that defendant committed the murder in an exceptionally brutal and heinous manner indicative of wanton cruelty. Based on that finding, the court sentenced defendant to an extended term of 90 years in prison, pursuant to sections 5\u20145\u20143.2 and 5\u20148\u20142 of the Unified Code of Corrections (730 ILCS 5/5\u20145\u20143.2(b)(2), 5\u20148\u20142 (a)(1) (West 1996)).\nThe appellate court has repeatedly held that the statutory scheme for extended-term sentences denies defendants due process, because the statute permits the court to sentence a defendant to a term in excess of the maximum permitted by statute for the charge submitted to the jury, based on a finding of fact never submitted for jury determination. E.g., People v. Nitz, 319 Ill. App. 3d 949, 962-69, 747 N.E.2d 38 (2001); People v. Swift, 322 Ill. App. 3d 127, 129-31, 750 N.E.2d 294 (2001); People v. Reynolds, 327 Ill. App. 3d 1027 (2002); People v. Johnson, 333 Ill. App. 3d 935 (2001). As the court explained in Nitz:\n\u201cWhen we examine the machinery for the imposition of a life sentence, we need to ask: What was the most severe punishment the law allowed the trial judge to impose, absent his finding that [the defendant] killed [the victim] in a brutal and heinous manner indicative of wanton cruelty? *** \u2018[D]ces the required finding expose the defendant to a greater punishment than that authorized by the jury\u2019s guilty verdict?\u2019 \u201d People v. Nitz, 319 Ill. App. 3d at 968, quoting Apprendi v. New Jersey, 530 U.S. 466, 494, 147 L. Ed. 2d 435, 457, 120 S. Ct. 2348, 2365 (2000).\nHere, as in Nitz and Swift, the jury\u2019s verdict, without any additional finding of fact, authorized the court to sentence defendant to a term of between 20 and 60 years in prison. 730 ILCS 5/5\u20148\u20141(a)(1)(a) (West 1996). The Unified Code of Corrections unconstitutionally deprives the defendant of the right to a jury determination of a fact crucial for setting the range of appropriate sentences the court has the authority to impose.\nThe prosecution claims that two cases require a contrary result. In People v. Ford, 198 Ill. 2d 68, 761 N.E.2d 735 (2001), our supreme court affirmed an extended-term sentence imposed on a defendant when the court found the defendant murdered the victim in an exceptionally brutal manner. But the court explained that the prosecution there sought the death penalty, and the defendant waived his right to a jury for the determination of death eligibility. At the death penalty hearing, the trial court \u201cfound, by proof beyond a reasonable doubt, that defendant was eligible for the death penalty. At this point,- and based exclusively upon facts that were proved beyond a reasonable doubt, defendant faced a prescribed statutory maximum sentence of death.\u201d People v. Ford, 198 Ill. 2d 68, 74 (2001). The court held that the extended term did not exceed this maximum.\nThe decision in Ford fully comports with the principles restated in Nitz. The defendant in Ford had a right to have a jury determine, beyond a reasonable doubt, all facts necessary to establish the appropriate range of sentences, up to a maximum of the death sentence. The imposition of a lesser sentence based on the court\u2019s finding of exceptional brutality did not violate the constraints of due process.\nThe prosecution also cites People v. Vida, 323 Ill. App. 3d 554, 572, 752 N.E.2d 614 (2001), which rejected the reasoning of all prior cases addressing the issue. The court in Vida held that section 5 \u2014 8\u20141(a) of the Unified Code of Corrections, authorizing sentences of 20 to 60 years for first degree murder, does not establish a statutory maximum for any crime, and the finding of exceptional brutality does not qualify as a finding of fact. Vida, 323 Ill. App. 3d at 570-72. The court concluded that the jury verdict of murder permitted a maximum sentence of natural life in prison, without any separate findings of what that court considered facts.\nWe adopt the more persuasive reasoning of Nitz:\n\u201cWhile our legislature clearly authorized the imposition of natural-life imprisonment in certain exceptional cases .of first-degree murder, it did not permit the imposition of a life sentence based solely upon the facts determined by a jury in arriving at its guilty verdict. *** To increase the sentencing range from the 20-to-60-year range set forth in section 5 \u2014 8\u20141(a)(1)(a), the sentencing judge must first find an additional fact, not decided by the jury. Without the required additional finding, the judge is constrained by law to impose a sentence no more severe than imprisonment for 60 years. Hence, a 60-year prison term is the most punishment to which an accused is exposed on the facts assigned to the jury for determination.\u201d Nitz, 319 Ill. App. 3d at 968.\nThe record includes some evidence that the victim provoked defendant by driving after the car in which he rode and crashing into that car after it turned around. But we find that the trial court did not abuse its discretion by refusing the second degree murder instruction because the severe beating of the unresponsive victim was disproportionate to the provocation. Although the prosecutors made several improper arguments, defendant failed to object. We cannot say that the improper arguments deprived defendant of a fundamentally fair trial or that the comments amount to plain error. Following Nitz, we find the extended-term sentencing statute unconstitutional as applied to defendant, and therefore we modify the sentence to a term of 60 years in the custody of the Department of Corrections.\nAffirmed as modified.\nCOHEN, EJ., and COUSINS, J., concur.", "type": "majority", "author": "JUSTICE McNULTY" } ], "attorneys": [ "Michael J. Pelletier and Kathleen M. Flynn, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, Julie Line Bailey, and Alan Spellberg, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANCISCO MENA, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201498\u20141326\nOpinion filed March 29, 2002.\nMichael J. Pelletier and Kathleen M. Flynn, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, Julie Line Bailey, and Alan Spellberg, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0579-01", "first_page_order": 597, "last_page_order": 607 }