People v. Gonzalez

2020 IL App (1st) 190130-U

Opinion

2020 IL App (1st) 190130-U No. 1-19-0130 Order filed June 2, 2020 Second Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 14174 ) MICHAEL GONZALEZ, ) Honorable ) Alfredo Maldonado, Defendant-Appellant. ) Judge, presiding.

JUSTICE COGHLAN delivered the judgment of the court. Justices Lavin and Pucinski concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for aggravated driving under the influence of alcohol affirmed over his assertion of entrapment and ineffective assistance of counsel.

¶2 Following a bench trial, defendant Michael Gonzalez was convicted of aggravated driving

under the influence of alcohol (DUI) and sentenced to four years’ imprisonment. On appeal,

defendant argues that the affirmative defense of entrapment created a reasonable doubt as to his No. 1-19-0130

guilt and that he is entitled to a new trial due to his attorney’s failure to present an entrapment

defense at trial.

¶3 Defendant was charged with two counts of aggravated DUI for driving or being in actual

physical control of a motor vehicle while under the influence of alcohol despite prior DUI

convictions.

¶4 At trial, Chicago police officer John Doyle testified that, at approximately 4:30 p.m. on

August 14, 2016, he and his partner were on patrol on West 18th Street in Chicago when “a guy

on a bike waved [them] down and said he had [been involved] in an altercation with a motorist.”

He pointed to a guy seated in a vehicle parked less than a block away. The officers “decided to go

investigate the allegation.”

¶5 The vehice was parked “kind of straddling a fire lane or bike lane.” As Doyle approached

the driver’s side, he observed the defendant was seated alone behind the wheel. The keys were in

the ignition and the vehicle was running. During a short conversation with the defendant, Doyle

noticed a strong odor of alcohol on his breath. The defendant was still in the vehicle when Officers

Barerra and Smith arrived and took over the investigation. Doyle recovered an open can of

Budweiser from inside the front passenger compartment of the vehicle. Doyle does not recall

asking the defendant to move the vehicle our of the bike lane so it was properly parked.

¶6 Barrera testified that, when he arrived at the scene, defendant was shirtless and unable to

produce a driver’s license. Barerra also noticed a strong odor of alcohol on defendant’s breath.

Although defendant agreed to take standard field sobriety tests and exited the vehicle when ordered

to do so, he “appeared confused” and “was staring into space.” He took about a minute to put his

-2- No. 1-19-0130

shirt on after repeated attempts. His speech was “mumbled and thick tongued,” meaning that “he

[was not] enunciating. The words [were not] clear.”

¶7 Barrera administered three standard field sobriety tests to defendant: the horizontal gaze

nystagmus test, the walk and turn test, and the one leg stand test. As the tests were being

administered, defendant was initially cooperative, but later became “defiant and combative.”

Based on Barrera’s personal and professional experience, the results of the sobriety tests, the strong

odor of alcohol on defendant’s breath, defendant’s behavior at the scene and the beer can recovered

from the vehicle, Barrera believed that “the defendant was under the influence of alcohol.”

¶8 Defendant was arrested and transported to the police station, where he refused to take a

breathalizer test. Barerra never saw the defendant driving the vehicle, but he remembers Doyle

telling him at the scene that he told defendant “to move his car.” The contents of the Budweiser

can recovered from the vehicle contained “5 percent ethanol by volume.”

¶9 Defense witness Ali Kadan testified that, on the afternoon of August 14, 2016, he drove to

pick up food from a restaurant on 18th Street with defendant and Rick Lopez in a vehicle owned

by defendant’s mother. Defendant sat in the front passenger seat and Lopez sat in the backseat.

Kadan parked the vehicle on 18th Street “in the bus zone, a little pas[t] the bus stop sign where the

wheel well was over the line.” When Kadan returned from the restaurant, Lopez told him that

defendant was being arrested for something involving a bicyclist. Kadan never saw the defendant

driving or drinking beer in the vehicle, but admitted that there was a beer inside the vehicle “in the

back console,” which was “kind of connected from the front to the back.” According to Kadan,

Lopez was drinking in the vehicle, but he and defendant were not. He told Doyle that he drove to

the restaurant but admits that he does not know what happened while he was inside.

-3- No. 1-19-0130

¶ 10 In finding defendant guilty of aggravated driving under the influence of alcohol, the trial

judge reasoned, as follows:

“The State has to prove that defendant either drove or was in actual physical possession of the car. I don’t have to concern myself with his driving. I heard that he was behind the wheel of a car, the car was running, keys in the ignition. [Defendant] was in actual physical control. The State has proven that beyond a reasonable doubt. And as to the question of whether he was under the influence of alcohol . . . the State has proven beyond a reasonable doubt that defendant was under the influence of alcohol.”

¶ 11 Defendant filed several posttrial motions, one of which requested reconsideration of his

conviction based on the affirmative defense of entrapment, arguing that Doyle had ordered him to

move the vehicle into a legal parking spot. The trial court denied defendant’s posttrial motions and

sentenced him to four years in the Illinois Department of Corrections. Defendant timely appealed.

¶ 12 On appeal, defendant argues that the evidence in this case raises a reasonable doubt as to

his guilt based on the affirmative defense of “driving entrapment.” Specifically, he asserts that the

the uncontradicted evidence shows “the police instructed [him] to . . . move the vehicle out of the

bike lane.” Where, as here, the sufficiency of the evidence is challenged, the relevant inquiry is

whether any rational trier of fact could have found the elements of the crime beyond a reasonable

doubt. People v. Pizarro, 2020 IL App (1st) 170651, ¶ 29 (citing, inter alia, People v. Smith, 185

Ill. 2d 532, 541 (1999)). Upon review, we may not substitute our judgment for that of the trier of

fact with respect to the weight of the evidence or the credibility of witnesses, and we will not

reverse a conviction unless the evidence is so improbable, unreasonable, or unsatisfactory as to

justify a reasonble doubt of defendant’s guilt. People v. Jackson, 232 Ill. 2d 246, 280-81 (2009);

People v. Rowell, 229 Ill. 2d 82, 98 (2008).

-4- No. 1-19-0130

¶ 13 To sustain the charge of DUI, the State must prove that defendant drove or was in “actual

physical control” of a vehicle and that he was under the influence of alcohol. 625 ILCS 5/11-

501(a)(2) (West 2016). A defendant convicted of DUI is guilty of aggravated DUI if it his third

(or more) violation of the DUI statute. 625 ILCS 5/11-501(d)(1)(A) (West 2016).

¶ 14 Defendant does not challenge the sufficiency of the evidence as to his intoxication or his

prior DUI convictions. Defendant’s sole argument is that there is no evidence that he ever drove

the vehicle except Barerra’s testimony that Doyle instructed him to move the vehicle. Regardless,

the evidence shows that defendant was in actual physical control of the vehicle before Doyle even

arrived.

¶ 15 “In Illinois, a vehicle need not be moving or the engine running for the driver to be in actual

physical control for purposes of driving under the influence.” People v. Morris, 2014 IL App (1st)

130512, ¶ 28. Actual physical control is determined on a case-by-case basis, giving consideration

to factors such as whether the defendant possessed the key to the ignition, was positioned in the

driver’s seat, was alone in the vehicle, and whether the doors were locked. People v. Slinkard, 362

Ill. App. 3d 855, 859 (2005).

¶ 16 In this case, the evidence established that when the police arrived at the scene, defendant

was the sole occupant of the vehicle, he was in the driver’s seat, and the vehicle was running with

the key in the ignition. 1 Applying the court’s analysis in Slinkard to the facts of the instant case,

the State proved that defendant was in actual physical control of the vehicle beyond a reasonable

doubt.

1 Under Illinois law, the engine did not even have to be running to establish actual physical control (Morris, 2014 IL App (1st) 130512, ¶ 28).

-5- No. 1-19-0130

¶ 17 Defendant also argues that the State failed to meet its burden of rebutting his affirmative

defense. Entrapment is a statutory defense, providing that “[a] person is not guilty of an offense if

his or her conduct is incited or induced by a public officer or employee * * * for the purpose of

obtaining evidence for the prosecution of that person.” 720 ILCS 5/7-12 (West 2004). By raising

entrapment as an affirmative defense, a defendant necessarily admits committing the crime, albeit

with improper governmental inducement. People v. Bonner, 385 Ill. App. 3d 141, 145 (2008).

Entrapment requires a defendant to show both that the State improperly induced him to commit a

crime and that he was not otherwise predisposed to commit the offense. People v. Sanchez, 388

Ill. App. 3d 467, 474 (2009). “Once a defendant presents some evidence, however slight, to support

an entrapment defense, the State bears the burden to rebut the entrapment defense beyond a

reasonable doubt.” Bonner, 385 Ill. App. 3d at 145 (quoting People v. Rivas, 302 Ill. App. 3d 421,

432-33 (1998)).

¶ 18 Defendant asserts that Barrera’s testimony that Doyle told him to move the vehicle

established the requisite slight evidence necessary to support an entrapment defense, which the

State then had the burden to rebut. We disagree. Where a defendant wishes to assert an affirmative

defense, he must notify the State and the court of this fact. People v. Collier, 329 Ill. App. 3d 744,

752 (2002); IL S. Ct. Rule 413(d) (eff. July 1, 1982) (“Subject to constitutional limitations and

within a reasonable time after the filing of a written motion by the State, defense counsel shall

inform the State of any defenses which he intends to make at a hearing or trial.”). The mere

presence of some slight evidence supporting an affirmative defense is not enough to impose a

burden of rebuttal on the State. People v. Bardsley, 2017 IL App (2d) 150209,

-6- No. 1-19-0130

¶ 19 Here, defendant did not raise the affirmative defense of entrapment in his answer as

required by Rule 413(d). This defense was first raised in a posttrial motion. At trial, defendant

called Ali Kadan, who testified that defendant (1) was seated in the front passenger seat of the

vehicle, not behind the wheel, (2) never drove the vehicle, (3) was not drinking alcohol and (4)

was not drunk.

¶ 20 The State is not required to rebut an entrapment defense that was not raised at trial. Id. In

addition, the entrapment defense is unavailable where, as here, the defendant denies committing

the offense. People v. Montes, 2015 IL App (2d) 140485, ¶ 19.

¶ 21 Defendant also argues ineffective assistance of trial counsel based on counsel’s failure to

present the entrapment defense at trial. Ineffective assistance of counsel claims are evaluated under

Strickland v. Washington, 466 U.S. 668 (1984). People v. Cherry, 2016 IL 118728, ¶ 24. Defendant

must show that his trial counsel’s performance was so seriously deficient as to fall below an

objective standard of reasonableness and that the deficient performance so prejudiced defendant

as to deny him a fair trial. Id. Prejudice is a reasonable probability that the outcome of the trial

would have been different or that the result of the proceeding was unreliable or fundamentally

unfair. Strickland, 466 U.S. at 687-88; People v. Hall, 217 Ill. 2d 324, 334 (2005). Defendant’s

failure to satisfy either prong of the Strickland test precludes a finding of ineffective assistance of

counsel. Strickland, 455 U.S. at 697; People v. Houston, 226 Ill. 2d 135, 144-45 (2007).

¶ 22 Counsel’s performance is presumed to be reasonable, and “ ‘strategic choices, made after

investigating the law and the facts, are virtually unchallengeable.’ ” People v. Velez, 388 Ill. App.

3d 493, 502-503 (2009) (quoting People v. Griffin, 178 Ill. 2d 65, 86 (1997)). A defendant who

claims ineffective assistance of counsel has the burden to “overcome the strong presumption that

-7- No. 1-19-0130

counsel’s action or inaction was the result of sound trial strategy.” People v. Anderson, 2013 IL

App (2d) 111183, ¶ 54 (citing People v. Ramsey, 239 Ill. 2d 342, 433 (2010)). “[D]ecisions on

what evidence to present and which witnesses to call rest with trial counsel and are generally

immune from claims of ineffective assistance of counsel, as they are matters of trial strategy.”

People v. Johnson, 2019 IL App (1st) 153204, ¶ 44 (citing People v. Ward, 187 Ill. 2d 249, 261-

62 (1999)).

¶ 23 Given the theory of defense in this case, that defendant never drove the vehicle and was

not intoxicated, not raising an entrapment defense was a sound and reasonable strategic decision.

Therefore, the defendant has failed to satisfy the first prong of the Strickland test and his ineffective

assistance of counsel claim fails.

¶ 24 For the reasons stated, we affirm defendant’s conviction.

¶ 25 Affirmed.

-8-