People v. Aguirre

2024 IL App (2d) 230287-U

• Court: Appellate Court of Illinois
• Decided: November 12, 2024
• Docket: 2-23-0287
• Status: Unpublished

Opinion

2024 IL App (2d) 230287-U No. 2-23-0287 Order filed November 12, 2024

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 21-CF-2176 ) DANIEL AGUIRRE, ) Honorable ) John A. Barsanti, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE MULLEN delivered the judgment of the court. Presiding Justice McLaren and Justice Schostok concurred in the judgment.

ORDER

¶1 Held: Trial counsel was not ineffective for failing to inquire about the effect of gang evidence upon potential jurors during voir dire and trial court did not abuse its discretion in sentencing defendant to 75 years’ imprisonment.

¶2 I. INTRODUCTION

¶3 On April 21, 2023, following a jury trial in the circuit court of Kane County, defendant,

Daniel Aguirre, was convicted of the first-degree murder (720 ILCS 5/9-1(a)(1) (West 2020)) of

Fernando Carapia and the jury further found that he personally discharged a firearm that

proximately caused death to another person during the commission of that offense (730 ILCS 5/5- 2024 IL App (2d) 230287-U

8-1(a)(1)(d)(iii) (West 2020)). Hence, defendant was sentenced to a term of imprisonment of 50

years plus a 25-year sentencing enhancement. He now appeals. First, he argues that his trial

counsel was ineffective for failing to question the potential jurors about gang bias during voir dire.

Second, defendant argues that his 75-year prison sentence was excessive. We find neither

contention well-founded; therefore, we affirm.

¶4 II. BACKGROUND

¶5 Defendant’s trial commenced on April 17, 2023. Prior to jury selection, the trial court

admonished the parties, “[d]o not attempt to indoctrinate or pre-educate the jury,” and “[d]o not

ask questions which highlight any aspects of a party’s case.” The trial court then affirmed that the

parties “can always ask questions about—that explore bias or prejudice.” The trial court stated

that it intended to ask the venire the following questions concerning gangs: (1) “You may hear

evidence in this trial concerning street gangs. Would this information affect you in such a way as

to make you unfair to one party or the other?” and (2) “Has anyone or your family or friends ever

been negatively affected by street gangs?” Defendant submitted a list of questions for the venire

concerning jurors’ attitudes about guns and street gangs. Specifically, defendant requested the

trial court ask the venire:

“a. Are you familiar with the neighborhood of 311 S. Spencer St. Aurora?

b. Have you heard about this particular case on the news or social media?

c. Have you heard about Latin King? [sic] Or, Gangster Disciples?

d. Do you have any strong opinion about street gang? [sic]

e. Have you had any contact with street gang? [sic]

f. Have you or any familes [sic] or friends ever had [a] negative experience with street

gangs?”

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The trial court stated that it would ask the first two questions, that it would not ask the third or fifth

ones; and that it would address the issues covered in the fourth and sixth questions.

¶6 During its opening instructions to the venire, the trial judge informed the potential jurors

of the address where the crime occurred and read the names of potential witnesses to them.

Addressing the entire venire, the trial judge asked, “Next, you may hear evidence in this trial

concerning street gangs. Would this information affect you in such a way as to make you unfair

to one party or the other?” He also asked the potential jurors whether they or someone they knew

had been adversely affected by “the street use of firearm[s].” The trial court elaborated:

“The point is, with your personal experience, does the fact that you’re going

to hear things about street firearms, firearms being used in the street and street

gangs, does this affect you in such a way – for whatever personal reason you may

have, affect you in a way that makes you think you can’t be fair?

Because in the end, that’s really the only salient point here is some things

you hear in a trial, sometimes people are so heavily affected by it that they can’t

really fairly consider both sides of the case or whether the State has proven their

case beyond a reasonable doubt.”

The trial court asked for a show of hands if anyone felt that, because the case was going to have

some information about street gangs and gun use, they might be “unfair to one side or the other.”

No hands were raised. Concerning street gangs, the trial court asked “has anyone in your family

or your friends ever been negatively affected by street gangs? Please raise your hand.” No hands

were raised.

¶7 During a break, Juror 83 informed the bailiff that he wished to address two issues with the

court. Pertinent here, he indicated that “as far as the gang involvement,” 20 years ago, when he

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was younger, he did have associates on “that side of Aurora.” Upon further questioning, he

declined to specify which gang. Juror 83 was ultimately excused by defendant.

¶8 The potential jurors were then questioned in groups of four. Juror 68 indicated they had

been an alternate on one jury and a juror on a second trial that concerned gangs. They indicated

they “learned more about gangs than [they] ever knew.” Defense counsel asked whether they

would bring any feelings from that case into this case, and Juror 68 replied, “No.” After

mentioning that experience with street gang testimony, the defense moved on to other questioning

and did not ask any questions about street gangs. Juror 68 was also excused by defendant. Defense

counsel did not ask any jurors about whether or not they would find a witness more or less

believable if the witness was in a gang.

¶9 After the jury was empaneled, the trial court gave the jurors their initial instructions. It

instructed the jury regarding biases:

“We all have feelings, assumptions, perceptions, fears and stereotypes about others.

Some biases we are aware of and others we might not be fully aware of, which is why they

are called implicit biases or unconscious biases.

Our biases affect how we act, favorably or unfavorably, towards someone. Biases

can affect our thoughts, what we see and hear, whom we believe and disbelieve and how

we make important decisions.

As jurors, you’re being asked to make important decisions in this case. You must

resist jumping to conclusions based on personal likes or dislikes. You must not let bias,

prejudice or public opinion influence your decision. You must not be biased in favor of or

against any person because of his or her race, ethnicity, national ancestry, religion, gender,

sexual orientation, age, disability or socioeconomic status.

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Your verdict must be based solely on the evidence presented.”

The trial court further instructed the jury regarding witness testimony:

“Only you are the judges of the believability of the witnesses and of the weight to

be given to the testimony of each of them. In considering the testimony of any witness you

may take into account his ability and opportunity to observe, his memory, his manner while

testifying, any interest, bias or prejudice he may have, and the reasonableness of his

testimony considered in the light of all the evidence in the case.”

It then explained what opening statements and closing arguments were, including that they do not

constitute evidence.

¶ 10 The case proceeded to trial. Jose Diaz, the victim’s brother-in-law, was the first witness

for the State. Jose testified that on the day of the shooting, January 15, 2021, he was living at 311

South Spencer Street with his mother and father, his sister, Diana, his brother-in-law, Fernando

Carapia, and his brother, Alfredo Diaz. At the time of the shooting, Jose, Fernando, and

Fernando’s six-year-old son were at the home. At approximately 4:45 p.m., Jose was upstairs in

his room at the front of the house when, after hearing four or five gunshots, he went to the stairs

leading to the first floor. He saw Fernando running up the stairs, unable to speak, with blood

coming from his mouth. When Fernando reached the top of the stairs, he collapsed and fell back

all the way down the stairs. Jose called 911 and was on the phone with the dispatcher when the

police arrived (the 911 call was played for the jury, and it was generally consistent with Jose’s

testimony). In his statement to an Aurora police officer, Jose said that his six-year-old nephew

was still in the house and that he did not know of any issues that his brother, Alfredo Diaz, was

having. Jose further testified, over defendant’s objection, that this was not the first time the house

had been shot at. Jose confirmed that his brother Alfredo was not at home during the shooting.

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Jose stated that neither he nor Fernando were gang members. Defense counsel did not cross-

examine Jose.

¶ 11 The State then called Officer Wagner of the Aurora Police Department. At the time of the

shooting, he was a field-training officer assigned to the patrol division. Wagner and a fellow officer

responded to a 911 call of a gunshot victim at the 311 South Spencer Street residence. He described

the scene as “chaotic.” After checking the perimeter and the rear of the house, he entered the home

and approached the victim, Fernando, who was lying face down in a pool of blood at the base of

the stairs, in the “kitchen area.” He testified that Fernando appeared to be “in the last stage of,

like, agonal breathing.” After rolling the victim onto his back, he did not find a pulse. He then

went upstairs to check for any additional victims and found Fernando’s child hiding in a room. He

ran to him, picked him up, and grabbed a blanket to cover his head so that the child would not see

his father’s body when they had to step over him to exit the house. Wagner identified a number of

photographs of the residence where the shooting occurred and of the victim, which were published

to the jury. Defense counsel declined to cross-examine Wagner.

¶ 12 Diana Diaz, the wife of Fernando Carapia, was the State’s next witness. She testified that

she had left the home at 9:30 and was still at work when the shooting occurred. Their child was

six years old, and she was also pregnant. She said Fernando had been to work that day and had

gotten home “maybe like around 3:00-ish.” He was changing the lights on his car. Diana described

his car as a white Acura, which he would park in the area by the detached garage. She

acknowledged that Aurora has gang activity and said that neither her brother, Jose, nor her

husband, Fernando, were in a gang. She stated that she did not know if Alfredo was in a gang.

She confirmed there had been shootings “at or near” her house in the recent past. She allowed

police to search the house, take photographs, and recover evidence. She also turned over her

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home’s surveillance recording systems to police, although they were not able to “find anything”

on the cameras. Defense counsel did not cross-examine Diana.

¶ 13 Wallace Giles next testified that he lived at 306 Hinman Street (Hinman Street is parallel

to and behind Spencer Street) to and was home at the time of the shooting. Hearing sounds similar

to fireworks, he looked out the bedroom window facing the backyard and saw someone running

in between the garage and the fence. He noted that the person was running awkwardly, with his

hands by his sides because his left hand was holding up his baggy pants and he was trying to put

away a black automatic pistol with his right hand. The person was wearing a dark hoodie, which

he described as reddish or maybe a little dark red. The person had something covering their face.

On cross-examination, Giles stated that he called the police. He described the person as no more

than 5’ 7” with a build between small and medium.

¶ 14 Jason Huerta was the State’s next witness. He testified with the aid of an interpreter.

Huerta stated that he lived at 576 North Avenue and was painting his bathroom at the time of the

shooting. Hearing gunshots, he looked out the window and saw a male wearing a light gray hooded

sweater running towards what looked like a gray Honda Accord parked on Hinman Street. The

person got into the front passenger seat, the car reversed a bit, but then started driving forward and

almost ran into a delivery truck. On cross-examination, he testified that he told the police on

January 18, 2024, that the suspect was “somewhat tall” but disagreed that the suspect was taller

than his own 5’9” height. He confirmed that he had told police that he was unable to tell if the

suspect was white or black. He had described the suspect as wearing a sweatshirt with a hood but

had not specified a color. He acknowledged that “it was difficult to see from [his] home” and an

apple tree was in his line of sight (albeit one that had shed its leaves). On redirect-examination,

Huerta described the car the shooter got into as light gray.

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¶ 15 The State next called Sergeant Ryan Tinsley of the Aurora Police Department. In January

2021, he was assigned as an evidence technician. He testified that he photographed and processed

the 311 South Spencer residence. He photographed the white Acura in the driveway and noted

three bullet holes on the rear driver’s side of vehicle. He described three bullet holes in the house

siding by the rear door, multiple bullet fragments outside the door, one bullet found inside a boxed

car seat inside the house by the rear door, and one bullet found in the siding by the rear door. Six

fired nine-millimeter cartridge casings were found on the ground in a neighbor’s yard and one was

found in the yard of 311 South Spencer. Tinsley described at least 30 fresh shoe prints in the

snow—both coming and going—along the pathway between the fence and the detached garage

leading to the back of the property and back towards Hinman Street. He also processed a Canik

nine-millimeter slide and barrel, recovered at the 712 Spencer Street address (where the shooter

fled to), for fingerprints.

¶ 16 The State then called Investigator Blaskey of the Aurora Police Department’s Special

Operations Group, which covers both gangs and narcotics. Blaskey testified that there were at

least three shootings that occurred in the spring of 2020 in the area of 311 South Spencer Street.

He was also familiar with 712 South Spencer and testified that it was associated with “some Latin

King gang activity.” He was with the team that executed the search warrant on 712 South Spencer

Street, and, while there, he viewed video surveillance from the home that showed a silver Honda

pulling into the driveway and three subjects getting out and going into the residence. He identified

the person exiting the front passenger side of the vehicle, in the white hooded sweatshirt, as

defendant.

¶ 17 Investigator Matt Bowman of the Aurora Police Department testified that he and

Investigator Vogiatzi drove to the 712 South Spencer residence upon hearing of the shooting at

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311 South Spencer Street (the former is about four blocks from the latter). He explained that,

through former investigations, he was aware of an “active feud” between Alfredo Diaz and other

Latin Kings, so he went to that address because it was a known Latin King residence and hangout.

They observed a silver Honda in the driveway that was a known Latin Kings vehicle and a suspect

vehicle in the shooting. They surveilled the house for approximately six hours, observing that the

Honda was not moved and that no people came into or exited the residence. He then left his

surveillance to participate in the execution of the search warrant. He described the events that

night: a group of approximately 20 SWAT members knocked loudly at the door for roughly 35

seconds, breached the door with a ramming device, deployed a distraction device to cover the

officers’ retreat, positioned themselves behind the armored personnel vehicle in front of the

residence, and played loud, recorded announcements in both English and Spanish that informed

the residents that a search warrant was being executed and ordered them to exit the residence with

their hands in the air. The residents complied, except for two men (DeLuna and Ivan Mondragon)

and a child, who the police encountered when they entered the house. When defendant exited the

residence, he was wearing a white hooded sweatshirt, jeans, and black and gold shoes. Booking

photos of defendant and Valles show that they were wearing the same clothing that they wore when

they exited the residence that night. On cross-examination, Bowman explained that the Honda

Accord was already parked behind the residence when they arrived.

¶ 18 Detective Matthew Adam of the Aurora Police Department participated in the execution of

the search warrant at the 712 South Spencer residence. Two rounds of ammunition, one nine-

millimeter and one .40 caliber, were recovered from the bottom of the first-floor bathroom toilet

bowl. In a basement bedroom closet, a firearm barrel was recovered from the unfinished ceiling.

In the basement bathroom toilet tank, a firearm slide and tension spring was recovered. Two days

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later, on January 18, 2021, Adam returned to the residence to search the attic based on specific

information given by Valles. A firearm frame was recovered underneath insulation in the

unfinished, crawlspace portion of the attic at that time. Adam confirmed all of the firearm parts

found were part of the same nine-millimeter firearm based on the serial numbers.

¶ 19 Jeffrey Parise, a forensic scientist with the Illinois State Police, was recognized by the trial

court as an expert in the field of firearms and firearms identification. Parise testified the recovered

fired cartridge casings were nine-millimeter. The two recovered, fired bullets tested were nine-

millimeter/.38 caliber. He confirmed that the recovered handgun frame, slide, barrel and recoil

spring were from the same firearm—a Canik-manufactured, nine-millimeter, Luger semiautomatic

pistol. His testing showed that all of the recovered cartridge cases, and the two recovered fired

bullets, were fired from the recovered firearm.

¶ 20 Detective Darrell Moore of the Aurora Police Department testified that he collected the

clothes of the individuals, including defendant, that were being held in the booking area holding

cells. He stated that these individuals were transported separately, in transport vans, directly to

the booking area. Detective Moore confirmed that he had not fired his weapon that day. Moreover,

no one in the police department had fired a weapon in that area that night; and, he had not been in

contact with anyone who had fired a gun that night. Moore had been trained in gunshot residue

collection and how to avoid contamination of evidence.

¶ 21 The State then called Kevin Gillespie, a forensic scientist in the trace chemistry section of

the Illinois State Police Forensic Science Center at Chicago. The trial court recognized Gillespie

as an expert in trace chemistry. Gillespie testified that the right cuff of defendant’s hooded

sweatshirt tested positive for gunshot residue. That is, the sweatshirt had been in the vicinity of a

discharged firearm or had come into contact with gunshot residue on another item. The presence

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of gunshot residue on a person’s clothing does not “mean that they actually fired a gun.” Gillespie

could not say how the gunshot residue got on defendant’s sweatshirt.

¶ 22 Leslie Mendoza was the State’s next witness. She lived in a second-floor apartment across

the street from the crime scene. On January 15, 2021, she heard gunshots, looked out the window,

and saw a man standing across the street. She said that “he was pointing at somebody and he had

shot whoever it was.” She remembered him wearing a gray hoodie, a white t-shirt, and jeans. She

then saw the man go towards the back of the house. On cross-examination, Mendoza did not

remember telling a police officer on January 15, 2021, that the man was wearing a blue hoodie,

but she stated that “at the time [she] stated it was a different color.” She maintained, at trial, that

she now thought he had worn a gray hoodie.

¶ 23 Officer Manuel Cuevas-Escobedo, an Aurora police officer, was the State’s next witness.

The trial court recognized him as an expert in “street gang identification and activity.” He

explained in detail what constitutes a gang, gang culture, and how gangs function. Cuevas-

Escobedo testified that there had been prior shootings in the area of 311 South Spencer Street, that

Alfredo Diaz was a documented Latin Kings member, and that Jose Diaz and Fernando Carapia

were not gang members. He said that 712 South Spencer Street was also associated with the Latin

Kings and that resident DeLuna was a Latin Kings member. At the time of the shooting, another

Latin Kings member, Valles, was also staying at the residence.

¶ 24 Cuevas-Escobedo then described the Latin Kings colors, hand signs, and tattoos. He

identified a photograph of defendant with two other individuals who were both making gang hand

signs. One of the other individuals had a Latin Kings tattoo on his face. He confirmed that all

three men were known Latin Kings members. He added that typical Latin Kings colors were

yellow and black, gold and black, and red and black—the latter worn to signify when they are “at

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war with someone, a target or another gang.” The State showed a photograph of a pair of black

and yellow Nikes that would be considered gang clothing. Cuevas-Escobedo explained the Aurora

Police Department’s nine-factor criteria to determine if an individual is a gang member. He

described the detailed documentation of gang members with “contact sheets.”

¶ 25 Around the time of the shooting, Cuevas-Escobedo testified, Alfredo Diaz, despite being a

Latin Kings member, was documented as hanging out with rival Gangster Disciples members and

the Latin Kings were not happy with these interactions. He testified that Valles, Bello, Mondragon,

and DeLuna were all Latin Kings gang members. Cuevas-Escobedo identified defendant as being

a Latin Kings member since 2019 with the nickname Primo, although the police documented gang

contacts for defendant dating back to 2013. He indicated that Valles was a higher-ranked member

than defendant. Defendant was a “shorty,” which is a lower ranking member that had not yet

earned his crown. To earn one’s crown, one typically had to commit an act of violence or some

other criminal act in furtherance of the gang. On cross-examination, Cuevas-Escobedo indicated

that Valles, as an enforcer, would be in charge of ensuring that any missions given to lower-ranked

members were carried out and that he would handle the guns. Valles came to Aurora from Chicago,

and Cuevas-Escobedo did not know how he had earned his crown. Cuevas-Escobedo

acknowledged that defendant did not have any gang-related tattoos.

¶ 26 The State then called Valles. He testified that in January 2021, he was a member of the

Latin Kings. He knew defendant. Valles was arrested and told he was being charged with first-

degree murder for the death of Fernando Carapia. Six months later, he gave police a recorded

statement of all information concerning the homicide at issue here in exchange for entering into

negotiations with the State. At that time, he signed a contract providing that if he testified contrary

to the substance of that statement, the State could use those statements against him. Separately,

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six months after that statement, Valles entered into another agreement with the State to plead guilty

to a new count, conspiracy to commit first-degree murder, a Class 1 felony, and to be sentenced to

15 years. He also pled guilty to an earlier offense of the unlawful use of a weapon by a street gang

member, for which he received a five-year sentence. As part of the agreement, the counts of first-

degree murder he had been charged with remained open and pending.

¶ 27 Turning to the instant offense, Valles testified that, on January 15, 2021, he was driving a

silver Accord and staying at 712 South Spencer Street. Around 2:30 p.m., he picked up Bello and

then they picked up defendant from his home on Loucks Street. Defendant was carrying a weapon

and got into the front seat. Valles believed the weapon was a “Nation” gun—meaning that it

belonged to the gang. The three men drove around town, smoking marijuana, and stopped at a gas

station and a McDonald’s. After picking him up, defendant was always seated in the front

passenger seat and Bello was in the back. The State entered into evidence and walked Valles

through a video that captured the car’s movements through the city, at the gas station, and at the

McDonald’s. Valles testified that defendant was in the front seat. Valles described driving past

Fernando’s house and seeing somebody go towards the back of the driveway. They assumed it was

Alfredo Diaz because of his height and because he was wearing a hoodie. They drove to Hinman

Street, which is behind Fernando’s house, where they had an open view to the back of it. Defendant

told Valles to stop the car and got out. Valles recalled hearing five shots (though he acknowledged

eight were recorded on the video) and then defendant got back in the car and said, “I got him.”

They almost hit a FedEx truck as they left the area. Defendant changed clothes and wiped down

the gun as they drove back to the 712 Spencer Street address.

¶ 28 Inside the house, defendant asked Valles to hide the gun, so Valles took it and placed it into

the duct downstairs. DeLuna, who was home at the time, instructed defendant to “switch clothes.”

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Defendant switched his shoes, but Valles was unsure about the rest of his clothing. At the house,

they checked social media and saw that the victim was not Alfredo Diaz. Defendant’s reaction

was to say, “Fuck it,” and Valles indicated that defendant did not care that the victim was not

Alfredo Diaz. They drank for a while, and Valles went to sleep. Valles was woken up later by

defendant and DeLuna, who demanded the gun, so he retrieved the still-intact weapon, gave it to

them, and went back to sleep. Later, he was awakened again by defendant telling him there was a

drone outside. Looking outside, he saw a SWAT team and realized they were being raided. Inside

the house, he broke down the gun and hid the pieces. Valles was arrested.

¶ 29 Valles explained that he was no longer a member of the Latin Kings. This was due to his

cooperation with the State. He covered his gang tattoos.

¶ 30 On cross-examination, Valles admitted that he initially lied to the police about living

elsewhere instead of acknowledging his residence at 712 South Spencer. Defendant had been in

his car previously. Valles confirmed he had handled the gun before and was unsure whether it was

a Nation gun. He used to be friends with Alfredo Diaz but at the time of the shooting, they were

no longer friends. Valles explained that Alfredo and his friends thought Valles was having an affair

with the mother of one their babies. He confirmed he was a higher rank than either defendant or

DeLuna, but denied ordering defendant to kill anyone. Valles was arrested and charged with

murder. Valles was facing a sentence of 20 to 60 years—served at 100%—with the possibility of

a 15-year enhancement. Valles confirmed that, after cooperating with police, he would be serving

15 years on a conspiracy to murder (served at 50%) and 5 years (served at 50%) for a pending

charge of unlawful possession of a weapon by a street gang member. The murder charge is still

pending, and Valles was required to testify consistently with his original statement to police to

avoid it being renewed.

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¶ 31 On redirect-examination, Valles explained he stopped behind the victim’s house because

he knew the house had cameras in the front. He also said he did not shoot anyone that night. On

recross-examination, he agreed that he did not want to spend his life in prison.

¶ 32 Officer Peter Bancroft, an Aurora Police Department evidence technician at the time of

the shooting, next testified that he processed a silver Honda Accord on January 16, 2021. He

recovered a water bottle from the driver’s door, lower pocket; several small, burnt, cigarette-style

items smelling of cannabis from a tin in front of the gear shift; and a McDonald’s receipt from the

back seat. He then processed the car for DNA and fingerprints. He collected three fingerprints

from the front passenger door area, and a print from the drivers’ side water bottle and submitted

them for processing.

¶ 33 On cross-examination, Bancroft acknowledged that the automobile had not been processed

for gunshot residue. Bancroft was also part of the team that processed the 712 South Spencer

residence. The house had already been searched, and he was asked to take photographs and collect

evidence. He testified that there were nine-millimeter cartridges recovered throughout the house

in different locations. He was able to lift one fingerprint from a cartridge recovered in a shelving

area between the dining and front rooms. He also recovered parts of a handgun.

¶ 34 The State’s next witness was Julie Smith, an Aurora Police Department forensic scientist.

She was recognized by the trial court as an expert in the area of latent print examinations. Smith

identified a palm print from the silver Honda’s interior passenger side door as that of defendant.

She also identified the print on the water bottle recovered from the driver’s side door as that of

Valles’s right thumb. On cross-examination, she acknowledged that she cannot tell when a

fingerprint is placed on to an object.

¶ 35 The State then called Sergeant Jason Cudebec of the Aurora Police Department. He is the

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lead detective for this investigation. A 911 call was made at about 4:48 p.m. reporting the shooting.

He arrived at the crime scene at about 5:15 p.m.

¶ 36 During the execution of the first search warrant at the 712 South Spencer residence,

Cudebec reviewed camera footage from the house and saw the Honda pull into the driveway at

4:49 pm, 62 seconds after the initial 911 call. Another officer (Blaskey) reviewed a video

recovered from the residence and was able to identify defendant as the person exiting the front

seat. Cudebec testified that police were able to determine what clothing defendant was wearing

earlier in the day through video footage from a gas station. That video showed the silver Honda

parked at a gas pump. Valles was driving. They obtained a second search warrant for the

residence, pursuant to which ammunition and parts of a handgun were recovered.

¶ 37 A third search warrant was obtained two days later (January 17, 2021). That warrant

authorized the police to look for “a McDonald’s box and shoes that [they] had not recovered ***

that matched the shoewear impression that was on scene.” Cudebec explained that an evidence

technician had discovered footprints leading from where the Accord had stopped on Hinman Street

to where shell casings were recovered near the site of the shooting. He added that the footprints

“showed a distinct tread pattern of the shooter, of the shoes that he was wearing.” Cudebec further

explained that, in the video recovered at 712 South Spencer, defendant exited the Honda wearing

a pair of solid black shoes. The shoes that defendant was wearing when arrested were not taken

into evidence, because they were black and gold.

¶ 38 Cudebec further testified that after charging Valles with murder and showing him a photo

of the men exiting the Honda at the 712 South Spencer address, Valles did speak directly about the

shooting, his role, and the roles of the other two men in the car. Based on Valles’s information,

Cudebec submitted defendant’s white sweatshirt for gunshot residue testing. Valles’s clothes were

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not submitted for gunshot residue testing because, based on witnesses’ statements and surveillance

videos, the Accord was moving during the actual shooting, and Valles, as the driver, would not

have been able to leave the vehicle. He was thus excluded from being the shooter.

¶ 39 Cudebec testified that, later the same day, Valles indicated that he wanted to speak with

detectives. He told them where the lower portion of the firearm used in the shooting was. Based

on that information, the police obtained a fourth warrant and recovered the rest of the gun. They

never recovered the shoes defendant was wearing when he exited the Accord shortly after the

offense.

¶ 40 The State played a videotape, with Cudebec narrating the addresses of the various camera

sources along the route, which showed the silver Honda leaving 712 South Spencer, traveling to

the McDonald’s, traveling to the gas station, then to the crime scene, and finally back to the 712

South Spencer residence. In one of the videos, there are audible gunshots, which, when corrected

for being exactly an hour ahead, occurred at 4:47-4:48 p.m.

¶ 41 Cudebec testified that he met with Valles and his attorney on June 18, 2021. A proffer

contract was made. There was no discussion with Valles about what might happen after his

statement was made. Before an offer could be made, the State had to “deem that his statement on

that date was truthful in all respects.”

¶ 42 On cross-examination, Cudebec was asked about his interviews with Valles and the proffer

agreement made. He testified that on January 18, 2021, “[t]here was a contract” memorializing

that Valles was getting a deal. Cudebec did not know the terms of the deal other than that Valles

“had to provide the truthful, in all respects, account of what happened on January 15th.” The State

then rested. Defendant made a motion for a directed verdict, which was denied.

¶ 43 Defendant first called Officer Shawn McCleary, an evidence technician with the Aurora

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Police Department. McCleary took photographs at the 712 South Spencer residence over a period

of two days. McCleary described the house as “messy.” He stated that he “possibly” removed a

pair of black and gold shoes from the residence and “possibly turned [them] over, either into

evidence or turned over to the investigators.” On cross-examination, McCleary agreed that they

were looking for “a certain pair of shoes and specific clothing that the officers were hoping to find

that correlated with the video of the Defendant.”

¶ 44 The defense then called Gina Minetti, an Aurora Police Department forensic scientist, who

was recognized by the trial court as an expert in the area of latent fingerprint examination. Minetti

conducted a latent fingerprint analysis on a bullet recovered at 712 South Spencer and identified a

fingerprint on it as belonging to Valles. At the conclusion of her testimony, the defense rested.

¶ 45 During deliberations, the jury sent a note to the trial court requesting a photograph of Bello.

With the parties’ agreement, the photograph was sent to the jurors. Defendant was convicted of

first-degree murder. The jury further found that defendant personally discharged a firearm that

caused the death of another during the commission of the offense.

¶ 46 A sentencing hearing was held on June 14, 2023. Officer Timothy Young testified that, on

September 15, 2019, he investigated the beating and stabbing of a young man at a festival. There

was a video in which defendant can be seen punching and kicking the victim as the victim was on

the ground. Defendant and another individual, also a member of the Latin Kings, were both

arrested. Defendant made a statement in which he admitted that he punched and kicked the victim.

On September 5, 2020, there was a shooting incident, and a suspect vehicle was identified. The

vehicle was observed with five active Latin Kings street gang members in it—including defendant

and Valles. On October 10, 2020, defendant was observed walking with another Latin Kings street

gang member. Officers attempted to speak with defendant, but defendant refused to cooperate.

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¶ 47 The State then called Darren Pedota, a police officer with the City of Aurora. He testified

that on April 20, 2020, he attempted to pull over a vehicle which fled at a high rate of speed and

eventually crashed. Defendant exited the vehicle and unsuccessfully attempted to flee. A gun was

found in the vehicle. While being medically treated at the scene, defendant attempted to swallow

a clear plastic bag that contained a white, powdery substance. Defendant was charged with

unlawful possession of a controlled substance. During another traffic stop, defendant called Pedota

a “bitch.” On cross-examination, Pedota agreed that during the incident on April 20, 2020, the car

that crashed did not belong to, nor was it driven by, defendant.

¶ 48 Officer Francisco Ibarra, a Kane County corrections officer, next testified for the State. He

stated that defendant was currently in the Kane County Jail and had been there since December

2021. Since his incarceration, defendant has two new tattoos on his wrist. Defendant has had

“probably ten or more” incident reports; including two involving having jail-made alcohol in his

cell. Defendant was involved in another incident that Ibarra described as a “jailhouse riot.” Ibarra

explained that “the detainees were using their mattresses to block the feed slots of their cells.”

¶ 49 Cuevas-Escobedo, who had testified during defendant’s trial, returned to the stand and

testified that defendant had his first documented gang contact sheet in high school, in September

2013. On February 14, 2014, defendant was first charged with a juvenile offense in Kane County,

for which, he received gang specific probation. On February 19, 2017, defendant violated that

probation when he was seen running across the road with a documented Latin Kings street gang

member. Defendant had two other documented gang contacts with Latin Kings street gang

members. On June 22, 2019, defendant was charged with resisting or obstructing a police officer

who was trying to arrest him on an outstanding warrant. That case was still pending at the time of

the sentencing hearing. On March 29, 2020, another gang contact sheet was generated when

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defendant fled from officers, with another Latin Kings street gang member, during a shooting

investigation. In the 11 months between the January 15, 2021, shooting at issue here and

defendant’s arrest on December 17, 2021, defendant was arrested five times within the City of

Aurora and eight gang contact sheets were generated.

¶ 50 The victim’s wife and brother-in-law made statements recounting the effect the victim’s

murder has had upon her family. Defense presented letters from defendant’s mother, sister, and a

teacher as well as photographs of defendant’s family. He also submitted transcripts and certificates

of education programs that he completed while in Kane County Jail. Defendant addressed the

court and apologized for his actions. He also recounted the circumstances under which he was

raised, which were difficult.

¶ 51 The trial court sentenced defendant to 50 years’ imprisonment plus a 25-year enhancement

for discharging a firearm that proximately caused the victim’s death. The trial court stated that it

had considered the evidence offered at trial, the evidence and arguments presented during the

sentencing hearing, and the applicable law. It noted that probation was not an authorized sentence

for first-degree murder and that the statutory sentencing range was 20 to 60 years’ imprisonment,

served at 100 percent. Moreover, section 5-8-1 of the Unified Code of Corrections (730 ILCS 5/5-

8-1 (West 2020)) provides for a sentence enhancement of 25 years to natural life if an individual

discharges a firearm that “proximately caused great bodily harm, permanent disability, permanent

disfigurement, or death to another person.”

¶ 52 The trial court found that “defendant was born on March 16, 1998” and was therefore 22-

years old at the time he committed the offense. In aggravation, the trial court found: (1) that

“defendant has a history of prior delinquency or criminal activity”; (2) that “the sentence is

necessary to deter others from committing the same offense”; (3) that defendant committed this

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offense, a felony, while on pretrial release for another felony; and (4) that defendant committed

this offense “related to the activities of an organized gang.” See 730 ILCS 5/5-5-3.2 (West 2020).

In mitigation, the trial court found that “defendant’s criminal conduct was induced or facilitated

by someone other than the defendant” (730 ILCS 5/5-5-3.1(5) (West 2020)); however, it added

that evidence of this was “vague, it wasn’t corroborated, [and] it was slight that another person

may have had a motive.” The trial court also noted that beyond a motive, Valles also outranked

¶ 53 The trial court reviewed the presentence report. It noted a statement defendant made to the

people who performed the presentence evaluation indicating that he “like[d] the adrenaline rush

of doing risky things, that he has stolen things and likes getting away with it.” The report revealed

that defendant had previously been convicted of (1) possession of a controlled substance; (2)

driving while his license was revoked; (3) unlawful street gang conduct; (4) resisting a peace

officer; and (5) another driving while revoked. It also showed three sentences to the Department

of Corrections. Moreover, defendant had “been placed on court supervision, conditional discharge,

or probation as a juvenile and an adult a total of eight times.”

¶ 54 The trial court stated that it had considered defendant’s rehabilitative potential and his

youth, including “its attendant circumstances.” It noted that the victim had no relationship to any

gang. It acknowledged defendant’s in-court apology and defendant’s statements that he was sad

and wanted to “be a positive force in his family and his community.” The trial court then observed

that defendant remained free for about 11 months after the murder. During this time, it quickly

became clear to defendant that the man he had killed was not in a rival gang and was “somebody

that didn’t have a beef with anybody or nobody had a beef with him.” The trial court continued,

“Now, I put [defendant’s statements] up against the defendant preached the sadness and sorrow

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[sic] in his statement, as I told you. I wanted to talk about the—He wanted to talk about good

works going forward in this matter. So I wanted to talk a little bit about what he did in that one

year.” The trial court then noted that during this period, defendant was driving with a revoked

license three times and unlawful possession of medical marijuana. A warrant for defendant’s

failure to appear was also issued. The court then stated:

“During that year while you’re aware of what has happened here and you’re still out of

custody, what I looked for the defendant to do was walk the straight and narrow and

understand what a horrible tragedy occurred at his hand for no reason whatsoever and

change his life. He didn’t change his life at all. He’s still committing crimes.”

According to the trial court, defendant’s conduct “belays [sic] his statement in allocution.” The

trial court then determined that a sentence of 50 years plus a 25-year enhancement, as requested

by the State, was warranted. The trial court acknowledged that this was a de facto life sentence.

This appeal followed.

¶ 55 III. ANALYSIS

¶ 56 On appeal, defendant raises two main issues. First, he argues that trial counsel was

ineffective for failing to adequately question potential jurors about any biases they may have had

against street gangs during voir dire. Second, defendant asserts that his sentence is excessive. We

find neither contention well-founded.

¶ 57 A. Ineffective Assistance Of Counsel During Voir Dire

¶ 58 Defendant first argues that his trial attorney did not adequately explore the subject of bias

regarding gangs during voir dire. When a defendant challenges the effectiveness of trial counsel,

the familiar analysis first set forth by the United States Supreme Court in Strickland v. Washington,

466 U.S. 668 (1984), controls. See also People v. Albanese, 104 Ill. 2d 504, 525 (1984). To

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succeed on such a challenge, a defendant must show (1) that counsel’s representation fell below

an objective standard of reasonableness and (2) that this deficient performance prejudiced the

defendant. People v. Johnson, 2021 IL126291, ¶ 52. A failure to satisfy either prong is fatal to

such a claim. Johnson, 2021 IL 126291, ¶ 53. “Although the performance and prejudice

components of an ineffectiveness inquiry present mixed questions of law and fact [citation], our

standard of review for determining whether a defendant was denied the effective assistance of

counsel is ultimately de novo. [Citation.]” Id. ¶ 52.

¶ 59 The first prong is assessed in light of “prevailing professional norms.” People v. Morgan,

187 Ill. 2d 500, 548 (1999). Matters constituting trial strategy generally may not form the basis of

an ineffectiveness claim. People v. Manning, 241 Ill. 2d 319, 327 (2011). Counsel’s conduct

during voir dire is generally deemed a matter of trial strategy. People v. Metcalfe, 202 Ill. 2d 544,

562 (2002). To show prejudice under the second prong, a defendant must establish that there is a

reasonable probability that, but for counsel’s unprofessional error, the outcome of the proceedings

would have been different. Johnson, 2021 IL 126291, ¶ 52. A “reasonable probability” is one

sufficient to undermine confidence in the outcome of the proceedings. People v. Spann, 332 Ill.

App. 3d 425, 433 (2002). Actual prejudice must be shown; mere speculation is insufficient.

People v. Bew, 228 Ill. 2d 122, 135 (2008).

¶ 60 Here, defendant challenges counsel’s conduct during voir dire. “The fundamental purpose

of voir dire is to ensure the selection of an impartial jury.” People v. Lanter, 230 Ill. App. 3d 72,

75 (1992). “The purpose of voir dire is to ascertain sufficient information about prospective jurors’

beliefs and opinions so as to allow removal of those members of the venire whose minds are so

closed by bias and prejudice that they cannot apply the law as instructed in accordance with their

oath.” People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993). At issue here is bias concerning street

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gangs.

¶ 61 Defendant is undeniably correct that street-gang evidence pervaded this case. Evidence

regarding street gangs is regarded as particularly problematic because “ ‘there is a deep, bitter and

widespread prejudice against street gangs in every large metropolitan area in America.’ ” People

v. Goldsberry, 259 Ill. App. 3d 11, 16 (1994) (quoting People v. Parrott, 40 Ill. App. 3d 328, 331

(1976)). Such evidence has the potential to inflame the passion of the jury and arouse prejudice

against a defendant. See People v. Silva, 231 Ill. App. 3d 127, 139 (1992). However, “even a gang

member has a constitutional right to have his case determined on the basis of the evidence of his

guilt or innocence, by a jury that is not predisposed to find him guilty solely because of his gang

membership.” People v. Jimenez, 284 Ill. App. 3d 908, 912 (1996). Nevertheless, where gang-

related evidence is relevant to a material issue, it may be admitted. Id. (quoting People v. Smith,

141 Ill. 2d 40, 58 (1990)).

¶ 62 Due process guarantees a defendant a right to an impartial jury. People v. Coe, 54 Ill. 2d

401, 411 (1973). Therefore, if evidence of a defendant’s gang affiliation will be presented to a

jury, a trial court is “under a clear duty to insure during voir dire that the jury select[ed is] free

from prejudice against this group.” Jimenez, 284 Ill. App. 3d at 912. Similarly, “when testimony

regarding gang membership and gang-related activity is to be an integral part of the defendant’s

trial, a defendant must be afforded an opportunity to question the prospective jurors, either directly

or through questions submitted to the trial court, concerning gang bias.” People v. Strain, 194 Ill.

2d 467, 477 (2000). Here, the trial court told defense counsel that she could “ask questions about—

that explore bias or prejudice” (though the trial court forbid questions regarding whether the

venirepersons had heard of the Latin Kings or Gangster Disciples or had any contact with street

gangs). Moreover, during voir dire, the trial court asked the venire: “So those two topics, street

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gangs and street gun use, does anybody feel that just the fact that this case is going to have some

information about that, do they feel that makes you unfair to one side or the other?” Nobody

responded affirmatively. It also asked. “Has anyone in your family or your friends ever been

negatively affected by street gangs?” It again received no affirmative response. Defense counsel

asked a juror—who they later excused—one question about gangs (the juror had indicated under

questioning by the trial court that he had associates who were gang members 20 years ago, and

defense counsel asked whether the juror would be comfortable revealing which gang; the juror

declined and defense counsel did not pursue the issue). Defense counsel did not otherwise question

the venire about gangs.

¶ 63 Defendant now contends that counsel’s failure to explore this issue further during voir dire

constitutes the ineffective assistance of counsel. He complains that counsel did not ask

venirepersons whether they “were biased against street gang members and whether they would

find a witness less believable simply because he or she was affiliated with a street gang.” In

support, defendant relies chiefly on our supreme court’s opinion in Strain, 194 Ill. 2d 467. 1 Like

this case, street-gang evidence was pervasive in Strain. Id. at 477. The trial court in Strain asked

two questions of the venire pertinent to the gang issue: (1) “whether the juror, any member of the

juror’s family or a close friend of the juror had ever been involved in a gang” and (2) “whether the

juror could be fair to both sides.” Id. at 470-71. The Strain court found that the first question was

insufficient to probe a venireperson’s potential bias: “A prospective juror may have had no direct

1 We are cognizant that Strain involved questioning by the trial court rather than counsel;

however, in either case, it provides sound guidance regarding the adequacy of the questioning at

issue.

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or indirect involvement with gangs, yet be biased against gang members or hold a negative opinion

on the subject of gangs.” Id. at 480. The supreme court did not reference the second question in

its analysis; however, the appellate court opinion that the supreme court affirmed explained that

the second question was irrelevant to the inquiry:

“The State further argues the addition of the last question asked to each prospective

juror—‘can you be fair to both sides here’—satisfied the probe regarding gang bias.

However, it is a common question at the end of voir dire proceedings, and it refers to an

overall determination of the prospective juror’s state of mind. Since no question was asked

during voir dire about bias towards gangs, this final question fails to encompass gang bias

and thus, is irrelevant to this discussion.” People v. Strain, 306 Ill. App. 3d 328, 337 (1999).

Ultimately, the supreme court reversed the trial court, holding, “Because of the trial court’s refusal

to probe for gang bias, [the] defendant was denied an informed and intelligent basis on which to

assert challenges for cause or to exercise peremptory challenges.” Strain, 194 Ill. 2d at 481.

¶ 64 Defendant contends that a similar result is warranted here. We disagree, as Strain is

distinguishable. Notably, the second question posed by the trial court in Strain, as the appellate

court explained, was of a general nature and did not mention gangs. Conversely, here, in addition

to asking the venire whether “anyone in your family or your friends [had] ever been negatively

affected by street gangs,” it also asked whether evidence concerning “those two topics, street gangs

and street gun use” would “make[] you unfair to one side or the other?” Unlike the second

question in Strain, the fairness question in this case expressly queried about gangs.

¶ 65 Defendant maintains that this query was nevertheless insufficient because “a person may

find it completely fair to be biased against all street gang members.” Defendant cites nothing in

support of this extraordinary proposition, which, in our opinion, strains credulity. “Fair” and

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“biased” are antonyms. Merriam-Webster Online Thesaurus, https://www.merriam-

webster.com/thesaurus/biased (last visited October 23, 2024). “Bias” means “an inclination or

temperament or outlook ***[;] such prepossession with some object or point of view that the mind

does not respond impartially to anything related to this object or point of view.” (Emphasis added.)

Webster’s Third New International Dictionary 211 (2002). Conversely, “fair” is defined as

“marked by impartiality” (emphasis added.) (Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/fair (last visited October 23, 2024)) and

“characterized by honesty and justice: free from fraud, injustice, prejudice, or favoritism”

(emphasis added) (Webster’s Third New International Dictionary 211 (2002)). These meanings

are confirmed by their usage in our case law. See People v. Moore, 2023 IL App (1st) 211421, ¶

115 (quoting People v. Wiggins, 2015 IL App (1st) 133033, ¶ 46 (quoting People v. Marino, 414

Ill. 445, 450 (1953))) (“The court, however, must conduct itself ‘ “in a fair and impartial manner,

without showing bias or prejudice against either party.” ’ ”; People v. Encalado, 2018 IL 122059,

¶ 24 (quoting People v. Lobb, 17 Ill. 2d 287, 300 (1959) (quoting Connors v. United States, 158

U.S. 408, 413 (1895)) (“To secure this right [to an impartial jury], inquiry is permitted during voir

dire ‘ “to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control

the fair determination by him of the issues to be tried.” ’ ”); People v. Zehr, 110 Ill. App. 3d 458,

461 (1982) (“Each of these questions goes to the heart of a particular bias or prejudice which would

deprive defendant of his right to a fair and impartial jury.”); see also People v. Montgomery, 2023

IL App (3d) 200389, ¶ 28 (“A sentencing hearing is fundamentally unfair when the proceeding is

affected by judicial bias.”); E & E Hauling, Inc. v. Pollution Control Bd., 116 Ill. App. 3d 586, 598

(1983) (“To decide whether the County Board proceedings were inherently unfair because of bias

and prejudice, we must first decide how to characterize these proceedings.”). Quite simply,

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defendant’s Orwellian assertion that some juror might find it “fair” to be “biased” flies in the face

of the plain meaning of these terms. Hence, reasonable trial counsel could conclude that the trial

court’s question as to whether evidence pertaining to street gangs would cause a juror to be unfair

adequately addressed the question of bias (we note that defense counsel did ask follow-up

questions and ultimately excused two jurors who indicated they had prior involvement with (one

through an earlier trial) street gangs). Therefore, defendant has not established that by failing to

further pursue this subject during voir dire, counsel’s conduct fell below an objective standard of

reasonableness.

¶ 66 Having concluded that defendant has failed to satisfy the first prong of the Strickland

analysis, we need not consider the second prong. Johnson, 2021 IL 126291, ¶ 53. Accordingly,

defendant’s claim that trial court provided ineffective assistance must fail.

¶ 67 B. Sentencing

¶ 68 Defendant also argues that his sentence is excessive. Defendant was sentenced to a total

of 75 years’ imprisonment—50 years for first-degree murder plus a 25-year enhancement for

discharging a firearm that proximately caused the victim’s death. The sentencing range for first

degree murder is 20 to 60 years. 730 ILCS 5/5-4.5-20(a) (West 2020). The statutorily authorized

sentence for the enhancement is 25 years’ imprisonment to natural-life. 730 ILCS 5/5-8-1(d)(iii)

(West 2020). Thus, defendant could have been sentenced from anywhere between 45 years’

imprisonment and natural life. Defendant asserts that his 75-year sentence is excessive in light of

his rehabilitative potential, his purportedly nonviolent criminal history, the chaotic home life in

which he was raised, his expression of remorse, his desire to be a productive citizen, and the fact

that he has a “supportive and loving family.” He points out that “he pursued and completed

educational credits while in custody which demonstrated his desire and ability to improve his life.”

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He asserts that the sentence imposed fails “to fulfill the mandatory objective of restoring him to

useful citizenship,” and he asks that we reduce the sentence for murder to 20 years’ imprisonment,

which would result in an aggregate sentence of 45 years.

¶ 69 Generally, “[a] sentence within statutory limits will not be deemed excessive unless it is

greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the

nature of the offense.” People v. Fern, 198 Ill. 2d 48, 54 (1999) (citing People v. Cabrera, 116 Ill.

2d 474, 493-94 (1987)). Our state constitution requires that sentences “be determined both

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

citizenship.” People v. Quintana, 332 Ill. App. 3d 96, 109 (2002); Ill. Const. 1970, art. 1, § 11.

Thus, a sentencing court must balance “the retributive and rehabilitative purposes of punishment.”

Id. “The seriousness of the crime is the most important factor in determining an appropriate

sentence, not the presence of mitigating factors such as the lack of a prior record ***.” Id. A court

must consider relevant mitigating evidence. People v. Calhoun, 404 Ill. App. 3d 362, 385 (2010).

¶ 70 Because “the trial court is in a better position to consider, among other things, the

credibility, demeanor, general moral character, mentality, social environment, habits and age of the

defendant” (Calhoun, 404 Ill. App. 3d at 385), we will not disturb a sentence absent an abuse of

discretion by the trial court (People v. Watkins, 2023 IL App (5th) 200322, ¶ 41). An abuse of

discretion occurs only where no reasonable person could agree with the position adopted by the

trial court. People v. Farris, 2012 IL App (3d) 100199, ¶ 26. We may not substitute our judgment

for the trial court or reverse a sentence simply because we would have weighed the pertinent

evidence differently. Fern, 189 Ill. 2d at 53.

¶ 71 Defendant first argues, “The sentencing court’s decision to sentence [him] to serve 75 years

in prison shows its failure to abide by the mandate from the Illinois Constitution and Illinois

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Supreme Court that a court consider the rehabilitation of the defendant as one of its objectives at

sentencing.” See Ill. Const. 1970, art. 1, § 11. He asserts that his “50-year sentence *** is

excessive because it completely removes any chance for rehabilitation or a return for useful

citizenship despite there being obvious indicators showing [he] had potential for rehabilitation.”

However, the trial court expressly considered defendant’s rehabilitative potential, stating, “I’ve

considered the possibilities and probabilities of the defendant’s rehabilitation, as well as the

defendant’s youth and its attendant circumstances.” Moreover, while it is true that a court must

consider a defendant’s rehabilitative potential, it must do so in light of all relevant sentencing

factors. Watkins, 2023 IL App (5th) 200322, ¶ 41. Further, “[n]ot all criminal defendants must be

given an opportunity for rehabilitation or else life imprisonment would not be constitutionally

permissible.” (Emphasis in original.) People v. Bien, 277 Ill. App. 3d 744, 755-56 (1996). “A

defendant’s rehabilitative potential *** is not entitled to greater weight than the seriousness of the

offense.” People v. Coleman, 166 Ill. 2d 247, 261 (1995). Indeed, “[i]t offends justice to declare

to crime victims and their families no ‘reasonable’ view of the record of their victimization would

justify a life sentence for the person who has physically and emotionally brutalized them.” Bien,

277 Ill. App. 3d at 756. We reject defendant’s premise that his rehabilitative potential—whatever

it may be—compels a lesser sentence. See People v. Rickard, 99 Ill. App. 3d 914, 919 (1981) (“We

recognize that in other circumstances, the rehabilitation factor might not be entitled to as much

weight.”).

¶ 72 Defendant contends that “the minimum prison term of 20 years (45 with the mandatory

firearm enhancement) would strike the proper balance between punishment and rehabilitation.”

The trial court balanced these factors. People v. Jones-Beard, 2019 IL App (1st) 162005, ¶ 21

(“The trial court has wide latitude to weigh the appropriate factors, which entitles it to deference.”)

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Defendant’s contention is essentially a request that we reweigh these considerations. It is

axiomatic that a “reviewing court may not reverse the sentencing court just because it may have

weighed the relevant factors differently.” People v. Busse, 2016 IL App (1st) 142941, ¶ 20.

¶ 73 Moreover, the trial court articulated a reasoned basis for placing diminished weight on

defendant’s purported potential for rehabilitation. The trial court noted that shortly after the

shooting, defendant became aware that he shot a bystander rather than another gang member.

Nevertheless, in the approximate year between the shooting and the arrest 2, defendant continued

to commit offenses. It is true that these intervening offenses were relatively minor (driving with a

revoked license on multiple occasions and unlawful possession of medical marijuana); however,

the trial court could reasonably infer that defendant’s subsequent disregard for the law weighed

negatively on his rehabilitative potential. Cf. People v. Lusby, 2020 IL 124046, ¶ 48 (In assessing

the defendant’s “prospects for rehabilitations, the court noted, “[W]hile [another inmate] and the

defendant were both incarcerated, the defendant attacked him in a dispute over the telephone.”);

People v. Boughton, 2023 IL App (4th) 221029-U,¶ 47 (“[T]he commission of further felonies

while one is in custody, awaiting trial, bodes ill for rehabilitation.”). Similarly, that defendant

accrued at least 10 incident reports while in jail awaiting trial provides further support for the trial

court’s conclusion. People v. Suggs, 2020 IL App (2d) 170632, ¶ 41 (Regarding the defendant’s

rehabilitative potential, the court observed, “Further, defendant was disciplined for numerous

offenses at the jail while awaiting trial and sentencing.”). In short, we cannot conclude that no

2 Although defendant was taken into custody shortly after the offense occurred, he was

apparently released, as the court file indicates an arrest warrant was issued approximately a year

later on December 17, 2021.

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reasonable person would agree with the trial court’s conclusion on this issue; therefore, no abuse

of discretion occurred. Farris, 2012 IL App (3d) 100199, ¶ 26.

¶ 74 Furthermore, we disagree with defendant’s characterization of his criminal record as

“nonviolent.” Defendant had pending charges for aggravated battery stemming from an incident

on September 15, 2019. Officer Young, who investigated the attack, described a video showing

defendant punching and kicking the victim, who was on the ground. Moreover, defendant has two

juvenile adjudications for battery. We further note that defendant was also convicted of aggravated

unlawful use of a weapon (720 ILCS 5/24-1.6 (West 2016)) occurring on July 6, 2017, which,

while not violent per se, bears obvious relevance here. It is true that defendant has nine convictions

of nonviolent offenses (which allow an inference regarding defendant’s persistent disregard of the

law), in addition to a myriad of pending cases. Thus, defendant is literally correct when he states,

“[T]he fact is that the vast majority of [his] criminal history consisted of non-violent traffic related

offenses.” However, that defendant committed a large number of nonviolent offenses in no way

mitigates the fact that by the time he murdered a person at the age of 22, he had already committed

two batteries, had a third battery charge pending, and also had been convicted of a weapons

offense. Defendant’s criminal history is not nonviolent.

¶ 75 Defendant also points to his expression of remorse, which, he stated, the trial court

acknowledged, during sentencing. It does not appear to us that the trial court found defendant’s

apology particularly credible: “Now, I put [the fact that defendant shot a bystander and his

subsequent actions] up against [how] the defendant preached the sadness and sorrow in his

statement.” The trial court explained, “So what I saw and recited to the court here—or to the

people here today is why that belays [sic] his statement in allocution.” Of course, the trial court is

the primary judge of credibility. Calhoun, 404 Ill. App. 3d at 385. Defendant has not established

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that the trial court’s assessment was erroneous.

¶ 76 It is true that there were some mitigating factors present in this case. Defendant points out

that “he was raised in a home where alcoholism and domestic abuse were present, he expressed

remorse to the victim’s family and shame for his failures, he has a supportive and loving family

including two young children of his own, and he pursued and completed educational credits while

in custody which demonstrated his desire and ability to improve his life.” We have already

addressed the trial court’s well-founded rejection of defendant’s purported remorse and his desire

to improve himself. The trial court expressly delineated a number of the factors in aggravation

and mitigation. In mitigation (730 ILCS 5/5--3.2 (West 2020)), it found that the shooting was

“induced or facilitated by someone other than the defendant.” (730 ILCS 5/5-5-3.1(5) (West

2020)), while noting that the evidence of this was “vague” and “uncorroborated.” In aggravation

(730 ILCS 5/5--3.2 (West 2020)), it noted defendant’s history of delinquency and criminal activity

and found that the sentence it imposed was necessary to deter others from committing a similar

offense. It found that defendant committed this crime “while he was on pretrial release” and that

it was related to the activities of an organized gang. The trial court did not mention defendant’s

home life as a factor in mitigation; however, it has been held that “evidence of a defendant’s

turbulent childhood is not inherently mitigating.” People v. Hickey, 204 Ill. 2d 585, 619 (2001).

Furthermore, a trial court need not expressly articulate each and every factor upon which it relies.

People v. Flores, 404 Ill. App. 3d 155, 159 (2010) (holding that “the trial court does not need

to expressly outline its reasoning for sentencing ***.”); People v. Ramos, 353 Ill. App. 3d 133,

137-38 (2004) (“In addressing whether the trial court erred in failing to consider the defendant’s

background in imposing his sentence, we note that it is well established that a trial court ‘need not

articulate the process by which it determines the appropriateness of a given sentence.’ ”).

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Balancing such factors is primarily a matter for the trial court. People v. Garibay, 366 Ill. App. 3d

1103, 1108 (2006). Defendant has not established that the manner in which the trial court did so

here constituted an abuse of discretion. We therefore affirm defendant’s sentence.

¶ 77

¶ 78 IV. CONCLUSION

¶ 79 In light of the foregoing, the judgment and sentence of the circuit court of Kane County is

affirmed.

¶ 80 Affirmed.

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