2016 IL App (1st) 140604
SECOND DIVISION August 9, 2016
No. 1-14-0604
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 3709 ) JOSE CAMACHO, ) Honorable ) Kay M. Hanlon, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Simon concurred in the judgment and opinion.
OPINION
¶1 Defendant Jose Camacho was sentenced to 32 years in prison after a jury found him
guilty of first degree murder. On appeal, he contends the trial court erred in refusing to provide
the jury with an instruction on mitigation from first degree murder to second degree murder due
to provocation. We disagree. Camacho’s version of the incident does not reveal any evidence of
provocation that he willingly entered into the fight with the victim. Instead, his testimony
establishes he acted defensively, fearing for his life.
¶2 Camacho also challenges certain monetary assessments imposed against him that he
argues qualify as fines. Camacho argues, and the State correctly concedes, he is entitled to $5 per 1-14-0604
day of presentence custody credit against the $50 court system assessment. Regarding
assessments intended to fund the technological advancement of both the State’s Attorney’s and
public defender’s offices, a prospective goal, we disagree they were intended to compensate the
state for the costs associated in prosecuting a particular defendant, and classify them as fines.
¶3 BACKGROUND
¶4 The State charged Camacho with first degree murder in connection with the May 24,
2001, death of Flavio Venancio. The police arrested Camacho in Mexico in 2012, and his trial
began the following year.
¶5 The evidence at trial showed that Camacho lived with Jose Zavala and Jose Davila at
Zavala’s apartment in Hanover Park. Camacho and Zavala worked together. Zavala testified that,
in the early morning hours of May 25, while he was sleeping, he heard a knock on his bedroom
door. When he opened the door, he saw Camacho, who “looked sad” and was dirty. Camacho
told Zavala that as he was driving, his passenger told him to go “faster” and “faster,” and, when
Camacho did, he lost control of the car and crashed. Camacho told Zavala the crash was the
passenger’s fault, but that the passenger told Camacho it was his fault for “being a dumb ass”
who could not drive. They got out of the car and Camacho told the passenger to bend over and
“look at what he had done.” After that, Camacho grabbed the passenger by the neck and began
hitting him with a pen. Then, Camacho tried to drown the passenger, but felt “remorseful,” so he
pushed on the passenger’s stomach so the water would come out. Zavala testified that Camacho
never told him that the passenger had a weapon or tried to injure him.
¶6 That morning, when Zavala arrived at work, he saw Camacho’s car in the employee
parking lot. Zavala noticed damage to the front right side, something he had not seen before.
Camacho, however, did not show up for work.
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¶7 Davila testified that in the afternoon of May 24, 2001, Camacho drove him to work in his
burgundy Mitsubishi and Davila did not notice any damage to the car. Around midday the
following day, Davila saw Camacho “[i]n a yard for work.” Camacho told him he had a
“problem” the night before with someone who lived in their apartment complex. Camacho said
he and this person were drinking beer, and, when they ran out, they entered Camacho’s car and
drove around to look for more beer. As they were driving, Camacho hit a guardrail. The
passenger became “upset,” told Camacho he could not drive and told Camacho to let him drive,
which made Camacho “upset.” Camacho eventually drove to a “secluded place” and told the
passenger to get out of the car. Then Camacho began hitting him with a pen in different parts of
his body and submerged the passenger’s head in a pond.
¶8 Camacho told Davila that, when he realized the passenger was not moving, he pulled the
passenger out of the water and pushed on his stomach “to see if he would react.” After water
came out of the passenger’s mouth, Camacho decided to leave. He threw his car’s registration
papers around the area so he could report the car stolen. Camacho did not tell Davila that the
passenger had a weapon or threatened him or that Camacho was injured. After their
conversation, Davila accompanied Camacho to a bus station where he bought a ticket to New
York. Davila did not see Camacho again until trial.
¶9 Davila did not remember telling a grand jury that both Camacho and the passenger were
hitting each other or that, after Camacho hit the passenger in the stomach with a pen, they both
fell into the water. Davila further did not remember saying that, after Camacho put the
passenger’s head in the water, he pulled him out of the water and pressed on the passenger’s
stomach until water came out. Davila also could not recall telling the grand jury that when
Camacho saw the passenger was “coming to,” he thought to himself “God help him” and left.
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¶ 10 Schaumburg police lieutenant Kurt Metzger testified he investigated a dead body found
in a retention pond “off the beaten path” near the Schaumburg Metra train station. The body was
facedown in the water with the back of the individual’s head exposed. Near the pond, Metzger
found a lanyard attached to an identification card for a “Pascual Fernandez.” Metzger also found
registration paperwork for a Mitsubishi Eclipse and an insurance card naming Homero Salgado
and Antonio Perez of Anaheim, CA, as the owners. Metzger eventually learned the victim’s
name was Flavio Venancio. Other evidence at trial showed Flavio Venancio was Pascual
Fernandez.
¶ 11 A week later, Metzger traveled to California and interviewed Perez and Veronica
Tamayo, Camacho’s wife. After these conversations, Metzger sought Camacho, who he learned
used Salgado as an alias. During Metzger’s conversation with Tamayo, she showed him a
telephone bill with calls from collect call numbers. Metzger contacted the phone company and
traced the calls to a residence in Hanover Park belonging to an individual by the name of Zavala.
Metzger contacted Schaumburg police detective Vito Rago and told him to visit the Zavala
residence.
¶ 12 That day, Rago met with Zavala, who took Rago to his employer’s parking lot where
Camacho had left his car. In the lot, Rago saw a red Mitsubishi Eclipse with damage to the front
passenger side. Inside the car, Rago found muddy boots. Zavala did not know Camacho’s
whereabouts.
¶ 13 In California, Metzger and the Anaheim police department could not locate Camacho,
and the police issued an arrest warrant for him. Eleven years later, Camacho was arrested in
Mexico and extradited to the United States.
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¶ 14 Crime scene technician James Herman investigated the dead body found in the retention
pond. He noticed the victim was facedown in the water. Herman rolled the victim’s body over;
the victim’s eyes were swollen shut, and he had lacerations above his left eye. Herman found a
cartridge from the center of a fountain pen. And on a road near the scene, Herman saw maroon-
colored paint on a damaged guardrail, broken car parts, glass, and a wheel cover with a
Mitsubishi emblem.
¶ 15 Medical examiner Dr. Scott Denton performed the autopsy of Venancio and observed
mud all over his body and in his nose, mouth, trachea, larynx, lungs, esophagus, and stomach.
Venancio’s stomach alone contained nearly 200 cubic centimeters of mud, more than half the
liquid capacity of a soda can, and pieces of twigs and branches that Denton had never seen
before. Based on the quantity of mud inside the body, Denton stated that Venancio must have
struggled “an excessive amount.” Denton concluded that Venancio drowned under water by
having his face pushed against mud, which required a “very forceful event.” The drowning could
not have been accidental due to the extent of Venancio’s injuries. Denton noted that, after being
submerged in the mud, Venancio likely lost consciousness within 60 seconds and thereafter
could not voluntarily move.
¶ 16 There were about 20 stab wounds on Venancio, mostly concentrated on his face,
consistent with being inflicted by a pen as well as various abrasions and impressions elsewhere
on the body that also appeared to have been inflicted by a pen. An X-ray revealed a piece of pen
with a metal tip 1½ inches long deep inside Venancio’s left nostril. Denton stated that only
“severe force” could have broken a pen inside of Venancio’s nose, especially considering the pen
was not “a standard plastic pen,” but “very hard.”
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¶ 17 Additionally, there was evidence of Venancio being punched in the face multiple times
and having been strangled. On Venancio’s neck, Denton saw bruising consistent with manual
strangulation and being punched or kicked, and hemorrhaging consistent with strangulation and
blunt trauma. A bruise on Venancio’s scalp was consistent with blunt force trauma from a log or
piece of wood. Two defensive wounds on Venancio’s left forearm and left hand looked
consistent with movement to protect or defend his body.
¶ 18 Denton concluded that Venancio’s cause of death was drowning, with contributing
factors of strangulation and stab wounds, and the manner of death was homicide. Denton noted
Venancio’s blood-alcohol concentration would have been nearly three times higher than the legal
limit to drive.
¶ 19 Camacho testified that he and Venancio were drinking beer for several hours until they
ran out. They walked to Camacho’s car and began driving around looking for more beer. As they
were driving, Venancio told Camacho to “press the gas to see how fast [his car] would go,”
which Camacho did. Venancio then told Camacho to go somewhere to pick up drugs. Camacho
did not want to become involved with drugs and refused. Venancio insisted on picking up the
drugs and called Camacho a “f*** scaredy [sic] cat.” Camacho again refused. As a result,
Venancio became “upset,” told Camacho he was going to drive the car, and grabbed the steering
wheel. The car veered into a guardrail. Camacho became “upset” because Venancio had ruined
his car. They both assessed the damage, and Venancio told Camacho to move the car off the road
because if the police arrived, they would have “problems.” After doing so, Camacho grabbed his
car’s paperwork and a pen so he could make a report for his insurance company.
¶ 20 With Venancio still inside the car, Camacho got out and bent down to again assess the
damage. Venancio then got out and tried to persuade Camacho to go pick up the drugs. Again he
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refused. Venancio grabbed Camacho by his shirt collar, pulled him, and told him “let’s go.”
Camacho swatted Venancio’s hand away from him, and Venancio became upset, insulting
Camacho with curse words. Venancio grabbed a knife “that bends” and said “ ‘I’m going to kill
you,’ ” before attacking Camacho with the knife.
¶ 21 Camacho retreated backward, trying to avoid the knife. At some point, Venancio tripped
and dropped the knife. Camacho picked the knife up and threw it away. Venancio became “very
angry,” again said “ ‘I’m going to kill you,’ ” and began punching Camacho. Camacho fought
back and eventually they fell to the ground, with Venancio on top of Camacho. Venancio
grabbed Camacho’s neck and tried to strangle him. In response, Camacho grabbed Venancio’s
neck and tried to strangle him. Because Venancio was on top and would not let go, Camacho
looked for something on the ground with which to hit Venancio but could not find anything.
Thereafter, Camacho found a pen in his pants pocket and hit Venancio with it. After using the
pen for a little while, the pen broke, and both men stood up and continued fighting, moving into
an area with water. Eventually, Venancio fell into the water and stopped fighting.
¶ 22 Camacho pulled Venancio toward the shore. He realized Venancio had swallowed water
and pushed on his stomach to get the water out. After water came out, Camacho noticed that
Venancio was “breathing hard” and alive because his arm had moved. Camacho decided to leave
as he did not want Venancio to attack him again. Camacho returned to Zavala’s house and
eventually left town because Venancio knew where he lived. Camacho abandoned his car
because it would only drive a short distance.
¶ 23 Camacho said his wife was in California in May 2001, but he was in Chicago to find
work. He acknowledged using the name Homero Salgado on occasion. When Venancio pulled
out the knife and threatened to kill him, Camacho became afraid. He was afraid even after he
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threw away the knife as Venancio continued to attack. Camacho maintained that he “tried to only
defend” himself during the fight with Venancio and never hit him out of anger regarding what
had happened to his car. Camacho denied leaving Venancio in the water. Camacho remembered
Venancio “spit[ting] up a lot of water” and breathing hard. Camacho could not remember if he
had any bruises or cuts as a result of the fight, but he was not hurt badly. Camacho recalled
discussing the incident with Zavala and Davila, but he could not remember what he told either of
them. Camacho also presented evidence that Venancio had been drinking alcohol during the day.
¶ 24 At the conclusion of Camacho’s case, the parties stipulated that Davila told a grand jury
that Camacho had told him he and Venancio were hitting one another. Camacho then hit
Venancio in the stomach with a pen and both men fell into the water. Camacho pushed
Venancio’s face into the water and continued hitting him. After Camacho realized that Venancio
was unresponsive, he pulled Venancio out of the water and pressed on his stomach to force out
the water. When Camacho saw Venancio “was coming to,” Camacho thought “let God help
him,” and left the scene.
¶ 25 During the jury instructions conference, the court granted Camacho’s requests for
instructions on self-defense and second degree murder based on an unjustifiable belief of self-
defense. It denied Camacho’s requests for instructions on involuntary manslaughter and second
degree murder based on provocation.
¶ 26 The jury found Camacho guilty of first degree murder. Camacho filed an unsuccessful
motion for a new trial, arguing, inter alia, the trial court erred in declining his proposed jury
instruction on second degree murder based on provocation. The trial court sentenced Camacho to
32 years in prison.
¶ 27 ANALYSIS
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¶ 28 Instruction Based on Provocation
¶ 29 Camacho first contends that the trial court erred in refusing to instruct the jury on second
degree murder based on provocation where there was sufficient evidence, if believed by the jury,
to demonstrate he formed the intent to kill Venancio during the heat of mutual combat.
¶ 30 The parties dispute the applicable standard of review. Camacho, citing People v.
Washington, 2012 IL 110283, ¶ 19, argues our review should be de novo. In contrast and citing
People v. Garcia, 188 Ill. 2d 265, 283 (1999), the State argues our review should be for an abuse
of discretion. Recently, this court noted, “the standard of review regarding whether evidence
exists to support a jury instruction is unclear.” People v. Collins, 2016 IL App (1st) 143422, ¶ 33
(contrasting Washington, 2012 IL 110283, ¶ 19, with People v. Jones, 219 Ill. 2d 1, 31 (2006), a
case using an abuse of discretion standard). But, we need not resolve this conflict as our
determination is the same under either standard. Id.
¶ 31 A defendant is entitled to a jury instruction on the provocation theory of second degree
murder when the evidence supports it. People v. Jones, 175 Ill. 2d 126, 131-32 (1997). The
evidentiary threshold is low—as long as the evidence provides some foundation ‘ “however
tenuous,’ ” the instruction should be given. People v. Lewis, 2015 IL App (1st) 122411, ¶ 56
(quoting People v. Looney, 46 Ill. App. 3d 404, 410 (1977)). Also, the instruction should be
given “regardless of the relative weight or credibility of that evidence.” People v. Willett, 2015
IL App (4th) 130702, ¶ 93. Thus, the defendant’s own uncorroborated testimony may form the
evidentiary basis for the proposed instruction. See People v. Pietryzk, 153 Ill. App. 3d 428, 436-
38 (1987).
¶ 32 Camacho argues the evidence could have persuaded a jury to conclude that he killed
Venancio while they were engaged in mutual combat, thus supporting the provocation
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instruction. The State responds that mutual combat means the struggle between the two parties
must be mutual, but Camacho’s own testimony indicated he defended himself from Venancio’s
attack.
¶ 33 First degree murder and second degree murder share the same elements. People v.
Flemming, 2015 IL App (1st) 111925-B, ¶ 53. The presence of a mitigating factor, such as
serious provocation, accounts for the difference. Id. Accordingly, a lesser-mitigated offense of
first degree murder is second degree murder. People v. Jeffries, 164 Ill. 2d 104, 122 (1995). The
Criminal Code of 1961 provides that first degree murder may be mitigated to second degree
murder if: “[a]t the time of the killing [the defendant] is acting under a sudden and intense
passion resulting from serious provocation by the individual killed.” 720 ILCS 5/9-2(a)(1) (West
2000).
¶ 34 “Serious provocation” involves “conduct sufficient to excite intense passion in a
reasonable person.” 720 ILCS 5/9-2(b) (West 2000). Our supreme court has recognized four
categories of serious provocation: (1) substantial physical injury or assault, (2) mutual combat or
quarrel, (3) illegal arrest, and (4) adultery with the offender’s spouse. People v. Page, 193 Ill. 2d
120, 133 (2000). “ ‘Passion on the part of the slayer, no matter how violent will not relieve him
from liability for murder unless it is engendered by a serious provocation which the law
recognizes as being reasonably adequate.’ ” People v. Chevalier, 131 Ill. 2d 66, 73 (1989)
(quoting People v. Matthews, 21 Ill. App. 3d 249, 253 (1974)).
¶ 35 The serious provocation at issue is mutual combat, which has been defined as “ ‘a fight or
struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in
hot blood, mutually fight upon equal terms and where death results from the combat.’ ” People v.
Thompson, 354 Ill. App. 3d 579, 588 (2004) (quoting People v. Austin, 133 Ill. 2d 118, 125
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(1989)). Mutual combat connotes a shared intent to fight between the parties. People v. Delgado,
282 Ill. App. 3d 851, 859 (1996).
¶ 36 A defendant is not entitled to a mutual combat instruction where the testimony
establishes only that the defendant “found himself [or herself] the unwilling participant in a fight
and acted only to defend himself [or herself] from attack.” Id.; see also People v. Flores, 282 Ill.
App. 3d 861, 868 (1996) (stating defendant “was not entitled to a mutual combat instruction
based on his testimony that he stabbed [the victim] in self-defense after [the victim] attacked
him”); People v. Lewis, 229 Ill. App. 3d 874, 881 (1992) (“To warrant a ‘provocation’
instruction based upon mutual combat, the struggle must be mutual. Struggling with an attacker
in an effort to ward off or defend one’s self against an assault is not sufficient to warrant a
provocation instruction.” (Emphasis in original.)).
¶ 37 The jury heard two versions of what happened: one from the testimony of Jose Zavala
and Jose Davila based on Camacho’s statements to them hours after the incident; and the other
from Camacho himself. The version testified to by Zavala and Davila provided no evidence of
mutual combat warranting an instruction on second degree murder based on provocation. They
testified to a version of events in which Camacho instigated a fight with Venancio because he
was upset over the car crash and Venancio’s repeated insults toward him. “One who instigates
combat cannot rely on the victim’s response as evidence of mutual combat sufficient to mitigate
the killing of that victim.” Austin, 133 Ill. 2d at 126; see also People v. Viramontes, 2014 IL App
(1st) 130075, ¶ 49 (same). Further, words alone, no matter how abusive, indecent, derogatory, or
offensive, cannot raise a provocation defense. Chevalier, 131 Ill. 2d at 71-72.
¶ 38 Camacho’s version of the incident similarly did not provide evidence of provocation.
According to Camacho, Venancio attacked him, pulled a knife on him, and threatened to kill
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him. Camacho testified he was afraid of Venancio, even after Camacho threw away the knife,
because Venancio continued to attack. Camacho stated he stabbed Venancio with the pen
because Venancio would not stop strangling him and only tried to defend himself from
Venancio. Camacho’s testimony established that his actions were defensive as he feared for his
life and did not suggest a willingness to enter into the fight with Venancio. Because Camacho
only asserted he acted in self-defense, he is not entitled to a provocation instruction. See
Delgado, 282 Ill. App. 3d at 859; Flores, 282 Ill. App. 3d at 868; Lewis, 229 Ill. App. 3d at 881.
¶ 39 Although Camacho testified he threw Venancio’s knife away, this act did not transform
the fight into one of mutual combat merely because Camacho and Venancio became engaged in
hand-to-hand combat, as argued by Camacho. At this point, Camacho’s actions still remained
defensive, as shown by his consistent trial testimony that he acted only in self-defense and feared
Venancio. Assuming arguendo that the struggle did transform into a mutual combat on equal
terms, Camacho’s infliction of more than 20 wounds to the face of a then-unarmed Venancio
with a pen reflects retaliation that was disproportionate to their mutual quarrel consisting only of
hands. See Viramontes, 2014 IL App (1st) 130075, ¶ 49 (“Provocation by mutual combat will
not be found if the manner in which the accused retaliates is out of proportion to the
provocation.”). Therefore, no evidence entitles Camacho to a second degree murder instruction
based on provocation, as there was no evidence of mutual combat. The trial court did not err in
refusing the instruction.
¶ 40 Camacho relies on People v. Leonard, 83 Ill. 2d 411 (1980), and People v. Phillips, 159
Ill. App. 3d 142 (1987) to support his argument. In Leonard, 83 Ill. 2d at 414-15, the defendant
brought a firearm to a confrontation with a security guard at the building from which the
defendant’s business had been evicted. Witnesses saw the defendant and guard engage in a
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struggle over a firearm, in which both held the weapon, the defendant by the handle and the
guard by the barrel. Id. at 415. No one witnessed the start of the conflict. Id. at 414-16. During
the struggle, the defendant shot the guard once and then pushed him over a banister to the
ground. Id. at 415. Our supreme court found evidence of mutual combat, which warranted
tendering a provocation instruction to the jury because the defendant’s intent to kill the security
guard could have arisen before the struggle ensued, or during the heat of the struggle. Id. at 421.
In Leonard, there was no evidence of how the struggle between the security guard and the
defendant arose or what the defendant’s intent was during the struggle. In contrast, here,
according to Camacho’s version, the fight began after Venancio attacked Camacho and
Camacho’s actions throughout the fight were solely defensive, thus providing no evidence to
support a provocation instruction.
¶ 41 In Phillips, 159 Ill. App. 3d at 148, the defendant relied on his own testimony to support
giving a jury instruction based on provocation. The defendant testified that he armed himself
with a knife to scare his supervisor so that the supervisor would listen to him and stop harassing
him. Id. at 146. When the supervisor saw the knife, he grabbed it from the defendant’s waistband
and swung it at the defendant. Id. After the knife slipped out of the supervisor’s hand, the
defendant picked it up and stabbed the supervisor. Id. The appellate court found the evidence that
the supervisor took the knife, which the defendant claimed he had no intention of using, and
swung it at the defendant, warranted tendering of a provocation instruction to the jury. Id. at 148-
49. But, as pointed out in Delgado, 282 Ill. App. 3d at 859, Phillips did not “explain[ ] how a
fight between two individuals, one of whom does not wish to fight and acts only in self-defense,
can be considered ‘mutual,’ a term that connotes a shared or common desire.” Delgado therefore
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declined to follow the reasoning in Phillips. Id. We too agree with the reasoning of Delgado and
decline to rely on Phillips’ analysis.
¶ 42 Accordingly, absent any evidence of provocation, the court’s refusal to provide the jury
with the instruction was not error.
¶ 43 Credits for Fines
¶ 44 Camacho next contends that the trial court failed to give him $5 per day of presentence
custody credit against three of his assessments that he argues qualify as fines: a $50 court system
assessment (55 ILCS 5/5-1101(c)(1) (West 2012)), a $2 State’s Attorney records automation
assessment (55 ILCS 5/4-2002.1(c) (West 2012)), and a $2 public defender records automation
assessment (55 ILCS 5/3-4012 (West 2012)).
¶ 45 Although Camacho failed to raise the propriety of his assessments in the trial court, a
reviewing court may modify a fines and fees order without remand. Ill. S. Ct. R. 615(b)(1) (“On
appeal the reviewing court may *** modify the judgment or order from which the appeal is
taken.”); see People v. McGee, 2015 IL App (1st) 130367, ¶ 82 (ordering clerk of the circuit
court to correct fines and fees order). As a matter of statutory interpretation, we review the
propriety of a trial court’s imposition of fines and fees de novo. McGee, 2015 IL App (1st)
130367, ¶ 78.
¶ 46 Camacho first argues, and the State correctly concedes, he is entitled to $5 per day of
presentence custody credit against the $50 court system assessment (55 ILCS 5/5-1101(c)(1)
(West 2012)). A defendant is entitled to a $5 credit for each day incarcerated toward the fines
levied against him (725 ILCS 5/110-14(a) (West 2012)), and the court system assessment is a
fine despite its statutory label as a fee. See People v. Blanchard, 2015 IL App (1st) 132281, ¶ 22
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(“[T]he $50 Court System fee *** is a fine ***.”). Therefore, Camacho must receive $5 per day
of presentence custody credit toward this fine.
¶ 47 Camacho next argues that he also must receive $5 per day of presentence custody credit
toward the $2 State’s Attorney records automation assessment (55 ILCS 5/4-2002.1(c) (West
2012)) and the $2 public defender records automation assessment (55 ILCS 5/3-4012 (West
2012)). Camacho asserts these assessments are actually fines despite their statutory labels as fees
because they do not seek to reimburse the state for the costs of prosecuting a particular
defendant. The State responds that they are properly labeled as fees.
¶ 48 Fines and fees are distinguished based on their purpose. People v. Graves, 235 Ill. 2d
244, 250 (2009). A fee is an assessment intended to “ ‘recoup expenses incurred by the state,’ or
to compensate the state for some expenditure incurred in prosecuting the defendant.” Id. (quoting
People v. Jones, 223 Ill. 2d 569, 582 (2006)). An assessment “is a fee if and only if it is intended
to reimburse the state for some cost incurred in defendant’s prosecution.” (Emphasis added.)
Jones, 223 Ill. 2d at 600. In contrast, a fine is punitive, “ ‘a pecuniary punishment imposed as
part of a sentence on a person convicted of a criminal offense.’ ” Graves, 235 Ill. 2d at 250
(quoting Jones, 223 Ill. 2d at 581). Although an assessment may be statutorily labeled as a “fee,”
it nevertheless may still be a “fine,” despite the language used by our legislature. Id. While the
legislature’s language “is strong evidence” of its intent, “it cannot overcome the actual attributes
of the charge at issue.” Jones, 223 Ill. 2d at 599. Both Jones and Graves state that for an
assessment to be a fee, it must not merely compensate the state for any expense, but rather
expenses incurred in the prosecution of the defendant.
¶ 49 Section 4-2002.1(c) of the Counties Code (55 ILCS 5/4-2002.1(c) (West 2012)), the
statute authorizing the State’s Attorney records automation assessment, provides:
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“State’s attorneys shall be entitled to a $2 fee to be paid by the defendant on a judgment
of guilty or a grant of supervision for a violation of any provision of the Illinois Vehicle
Code or any felony, misdemeanor, or petty offense to discharge the expenses of the
State’s Attorney’s office for establishing and maintaining automated record keeping
systems. The fee shall be remitted monthly to the county treasurer, to be deposited by
him or her into a special fund designated as the State’s Attorney Records Automation
Fund. Expenditures from this fund may be made by the State’s Attorney for hardware,
software, research, and development costs and personnel related thereto.”
The language of section 3-4012 of the Counties Code (55 ILCS 5/3-4012 (West 2012)), the
statute authorizing the public defender records automation assessment, is nearly identical, albeit
in the context of “discharg[ing] the expenses of the Cook County Public Defender’s office.”
Therefore, the two assessments will be analyzed together.
¶ 50 The language of both statutes does not demonstrate that the purpose of the assessments is
to compensate the state for the costs associated in prosecuting a particular defendant. Rather,
both statutes demonstrate a prospective purpose intended to fund the technological advancement
of both the State’s Attorney’s and public defender’s offices, namely the establishment and
maintenance of automated record keeping systems. As the statutes direct, the money collected
from these assessments may be used for “hardware, software, research, and development costs
and personnel related thereto.” 55 ILCS 5/3-4012, 4-2002.1(c) (West 2012). It cannot be said
that the costs associated with developing and researching automated record keeping systems is a
cost associated with prosecuting a particular defendant.
¶ 51 Furthermore, the public defender records automation assessment applies to “a judgment
of guilty *** [for] any felony, misdemeanor, or petty offense.” (Emphasis added.) 55 ILCS 5/3-
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4012 (West 2012). Based on this language, the assessment may be applied against a guilty
defendant even when the public defender does not represent him. If the assessment can be
imposed against a defendant when the public defender had absolutely no involvement in his or
her case, the assessment’s purpose is not to compensate the state for the costs associated with
prosecuting a particular defendant.
¶ 52 We recognize every published decision on this matter has determined that both the
State’s Attorney and public defender records automation assessments are fees. But, these
decisions have not independently analyzed the relevant statutes. Rather, they have simply relied
on previous decisions without any meaningful analysis. See People v. Maxey, 2016 IL App (1st)
130698, ¶¶ 142-44 (relying on People v. Rogers, 2014 IL App (4th) 121088, and People v.
Bowen, 2015 IL App (1st) 132046); People v. Reed, 2016 IL App (1st) 140498, ¶¶ 16-17 (relying
on Rogers and Bowen); People v. Green, 2016 IL App (1st) 134011, ¶ 46 (relying on Bowen);
Bowen, 2015 IL App (1st) 132046, ¶¶ 62-65 (relying on Rogers); People v. Bradford, 2014 IL
App (4th) 130288, ¶ 41, rev’d on other grounds, 2016 IL 118674 (relying on People v. Warren,
2014 IL App (4th) 120721); Rogers, 2014 IL App (4th) 121088, ¶ 30 (relying on Warren). Thus,
People v. Warren, 2014 IL App (4th) 120721, is the seed from which all these decisions have
stemmed.
¶ 53 In Warren, 2014 IL App (4th) 120721, ¶ 107, vacated, No. 118322 (Ill. Jan. 20, 2016)
(Supervisory order reconsidering judgment in light of People v. Castleberry, 2015 IL 116916),
the clerk of the circuit court imposed the State’s Attorney records automation assessment against
the defendant on both of his convictions. Because the assessment was enacted into law after the
defendant committed his crimes, the appellate court had to determine whether the assessment
was a fine, the imposition of which would thus violate the prohibition on ex post facto
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punishment, or a fee, in which case the assessment would be proper. Id. The court concluded the
assessment was a fee, finding:
“The plain language of section 4-2002(a) evidences the legislature’s intent the $2
assessment be compensatory in nature. The assessment is to be used to ‘discharge the
expenses of the State’s Attorney’s office for establishing and maintaining automated record
keeping systems.’ [Citation.] Because the assessment is intended to reimburse the State’s
Attorneys for their expenses related to automated record-keeping systems, the assessment is
not punitive in nature.” Id. ¶ 108 (quoting 55 ILCS 5/4-2002(a) (West 2012)).
¶ 54 Although the assessment at issue in Warren was imposed under section 4-2002(a) of the
Counties Code (55 ILCS 5/4-2002(a) (West 2012)), it is the same assessment imposed in this
case under section 4-2002.1(c) of the Counties Code (55 ILCS 5/4-2002.1(c) (West 2012)). See
Pub. Act 97-673 (eff. June 1, 2012) (amending 55 ILCS 5/4-2002, 4-2002.1 (West 2012)). Our
legislature has simply provided for different State’s Attorney’s assessments based on the
population of the county.
¶ 55 Recently Warren was re-decided in People v. Warren, 2016 IL App (4th) 120721-B. The
appellate court once again held the State’s Attorney records automation assessment was a fee,
using its verbatim language from the original Warren decision. Id. ¶ 115.
¶ 56 We disagree with Warren—the State’s Attorney and public defender records automation
assessments do not compensate the state for the costs associated in prosecuting a particular
defendant. Accordingly, they cannot be considered fees. See Jones, 223 Ill. 2d at 600
(Assessment “is a fee if and only if it is intended to reimburse the state for some cost incurred in
defendant’s prosecution.” (Emphasis added.)). As the assessments cannot be fees, they must be
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fines. Therefore, Camacho is entitled to $5 per day of presentence custody credit against these
fines. See 725 ILCS 5/110-14(a) (West 2012).
¶ 57 Under the authority of Illinois Supreme Court Rule 615(b)(1) and our ability to correct a
fines and fees order without remand (see McGee, 2015 IL App (1st) 130367, ¶ 82), we order the
clerk of the circuit court to award Camacho $5 per day of presentence custody credit toward his
$50 court system fine, his $2 State’s Attorney records automation fine, and $2 public defender
records automation fine.
¶ 58 The judgment of the circuit court of Cook County is affirmed in all other respects.
¶ 59 Affirmed as modified.
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