People v. Gonzalez-Zuniga

2024 IL App (2d) 230538-U

Opinion

2024 IL App (2d) 230538-U No. 2-23-0538 Order filed February 22, 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. 23-CF-2541 ) WILMAR A. GONZALEZ-ZUNIGA ) Honorable ) William G. Engerman Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE KENNEDY delivered the judgment of the court. Presiding Justice McLaren and Justice Jorgensen concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in denying defendant pretrial release where defendant admitted to striking and sexually assaulting the victim multiple times posed a threat to the safety of the victim despite a lack of other violent criminal history, and the trial court’s denial of defendant’s request for electronic monitoring was not based on his inability to afford housing. Affirmed

¶1 Defendant, Wilmar A. Gonzalez-Zuniga, appeals from the denial of his pretrial release

under section 110-6.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-6.1

(West 2022)). For the following reasons, we affirm. 2024 IL App (2d) 230538-U

¶2 On November 23, 2023, defendant was charged by complaint with criminal sexual assault

(720 ILCS 5/11-1.20(a)(1) (West 2022)), criminal sexual abuse (id. § 11-1.50(a)(1)), and two

counts of domestic battery (id. § 12-3.2(a)(1), (2)). That same day, the State filed a verified petition

to deny defendant pretrial release. Following a hearing on November 24, 2023, the trial court

entered an order denying defendant’s pretrial release.

¶3 Defendant argues in his notice of appeal that the State failed to show by clear and

convincing evidence that (1) the proof was evident or presumption great that defendant committed

the charged offenses, because the State “only presented a synopsis”; (2) defendant poses a real and

present threat to the safety of any person or persons or the community, because the State “only

presented a synopsis and criminal history”; (3) no condition or combination of conditions can

mitigate the real and present threat to the safety of any person or persons or the community, only

checking the box without elaboration; and (4) no condition or combination of conditions would

reasonably ensure the appearance of defendant for later hearings or prevent defendant from being

charged with a subsequent felony or Class A misdemeanor, elaborating that the court failed to

consider “other conditions *** that would reasonably ensure [defendant’s] appearance and prevent

subsequent charges.”

¶4 Defendant also filed a memorandum in support of his appeal. In his memorandum

defendant argued that the trial court’s refusal to impose electronic home monitoring based on

defendant’s failure to provide an address effectively imposes a monetary condition of release,

which was abolished by the recent amendments to the Code, commonly known as the Pretrial

Fairness Act or SAFE-T Act.

¶5 On an appeal from an order denying a defendant pretrial release, we review whether the

trial court’s factual findings were against the manifest weight of the evidence. People v. Trottier,

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2023 IL App (2d) 230317, ¶ 13. A finding is against the manifest weight of the evidence when it

is unreasonable. People v. Sims, 2022 IL App (2d) 200391, ¶ 72. We review the trial court’s

ultimate decision regarding pretrial release for an abuse of discretion. Trottier, 2023 IL App (2d)

230317, ¶ 13.

¶6 To begin, we reject defendant’s argument that a synopsis and criminal history are per se

insufficient to demonstrate that the proof is evident or presumption great that defendant committed

the charged offenses or that defendant posed a real and present threat to the victim in this case. At

a pretrial detention hearing, the State is explicitly permitted by the Act to present evidence “by

way of proffer based upon reliable information.” 725 ILCS 5/110-6.1(f)(2) (West 2022). Indeed,

the Act additionally exempts detention hearings from the rules of evidence. Id. § 6.1(f)(5). Without

explaining why this police synopsis is not “reliable,” counsel’s notice of appeal simply argues

“[t]he State merely argued that the written [synopsis] in the case was sufficient evidence.” This

bare conclusory argument is patently without merit, and appellate counsel should have moved to

withdraw it. People v. Mancilla, 2024 IL App (2d) 230505, ¶ 35.

¶7 Further, the evidence in the synopsis was more than sufficient to show by clear and

convincing evidence that the proof was evident or presumption great that defendant committed the

charged offenses. According to the synopsis, defendant’s ex-boyfriend went to the Elgin Police

Department to report the alleged domestic violence and sexual assaults. The victim advised police

that he and defendant began living together approximately two months prior. They terminated their

romantic relationship about four weeks earlier. The victim described two acts of sexual assault

which occurred on October 23 and 30, 2023. The victim stated that on November 22, 2023, he and

defendant got in an argument and defendant punched him in the side of his head. After things

cooled down, the two agreed to go to the park to talk and smoke cannabis. While at the park

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defendant tried to kiss the victim, who put his hands up to block defendant. Defendant then became

mad and pushed the victim to the ground, injuring the victim’s hands. The victim ran away and

called for help. The victim had visible injuries to his hands, which the police photographed.

¶8 Police took defendant into custody where, after being read his rights pursuant to Miranda

v. Arizona, 384 U.S. 436 (1966), defendant admitted to striking the victim in the head and pushing

him at the park. He also admitted to performing the sexual acts described by the victim on October

23, and 30, 2023, and that the victim told him, “I don’t want to.”

¶9 Positive identification by a single witness is sufficient to sustain a conviction (People v.

Slim, 127 Ill. 2d 302, 307 (1989)), let alone an order for pretrial detention. Further, defendant

admitted to much of the charged conduct. Accordingly, there was sufficient evidence upon which

the trial court could find that the proof was evident or the presumption great that defendant

committed the charged offenses.

¶ 10 Additionally, although defendant did not have any violent criminal history, the ongoing

assaultive and violent nature of the allegations in the instant case were sufficient to show that

defendant posed a real and present threat to the safety of the victim.

¶ 11 Regarding less restrictive conditions, at the detention hearing, trial counsel represented that

defendant would be able to reside somewhere other than with the victim, and that GPS or electronic

home monitoring could be appropriate. The court then inquired about where defendant would be

residing. Trial counsel responded that defendant had several friends who lived in Elgin, and he

believed he would be able to stay with one of them, but that defendant needed to speak with them

first. In denying defendant pretrial release, the trial court stated that,

“I have not been given an address at which defendant would reside; therefore, at

this point, I cannot impose conditions of a GPS or Electronic Home Monitoring because I

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don’t know where the defendant would reside. I don’t know who the defendant would

reside with. I don’t have the name of any friends that defendant could live with.

He has no—there’s been no indication that the defendant has any family in this

area.”

¶ 12 Defendant argues that the trial court’s refusal to consider electronic home monitoring based

on the lack of an address is contrary to the purpose of the Pretrial Fairness Act, it is tantamount to

requiring cash bail, and that defendant’s inability to pay for housing is not a sufficient reason to

detain him.

¶ 13 Defendants placed on electronic home monitoring require a host site where they can live

while on electronic home monitoring, typically with family or friends. People v. Brown, 2023 IL

App (1st) 231890, ¶ 1 n.2. Further, the failure to provide an acceptable host site can be a basis to

detain a defendant pretrial, even when a defendant has been ordered released on the condition of

electronic home monitoring. See id. ¶ 17 (following a hearing under section 110-5(e) of the Code

(725 ILCS 5/110-5(e) (West 2022)), the trial court was authorized to leave the condition of

electronic home monitoring in place despite the failure to locate a proper host site).

¶ 14 Defendant is correct that, under the Pretrial Fairness Act, “the inability of the defendant to

pay for a condition of release or any other ineligibility for a condition of pretrial release shall not

be used as a justification for the pretrial detention of that defendant.” 725 ILCS 5/110-5(e) (West

2022). However, despite counsel’s assertion, there is nothing in the record to indicate that

defendant’s inability to locate a proper host site in the instant case was the result of defendant’s

inability to pay for housing.

¶ 15 Defendant had a full-time factory job and owned a car. Defendant had been living at the

residence to which the victim moved two months prior to defendant’s arrest. Given the allegations

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in the instant case, it would be untenable for defendant to continue living with the victim if granted

pretrial release. The record does not reflect how long defendant resided at that address or in the

area. The court additionally noted that defendant had pending charges in Texas from October 2022

and in Illinois from July 2023 for “willfully or fraudulently misrepresenting a material fact to

procure a visa or admission.” Defendant suggested that he would be able to live with friends in

Elgin, but stated he would need to speak with the friends first. Defendant made no argument that

he could not afford housing.

¶ 16 Accordingly, we do not reach the issue of whether the inability to afford housing, and thus

provide an appropriate host site for electronic home monitoring, constitutes an “inability of the

defendant to pay for a condition of release” under section 110-5(e) of the Code.

¶ 17 Defendant further argues that the trial court improperly shifted the burden of proof to

defendant to provide the address for a host site, where the State bears the burden of showing that

no combination of conditions could mitigate the threat defendant posed to the victim. While it is

true that the State bears the burden of proof at a pretrial detention hearing (725 ILCS 5/110-6.1(e)

(West 2022)), the State cannot be expected to present mitigating evidence that is within

defendant’s possession such as family ties, employment, financial resources, length of residence

in the community, or community ties. 725 ILCS 5/110-5(a)(1) (West 2022)). In the instant case,

the State showed that at the time of arrest, defendant was living with the victim. When defendant

argued the electronic home monitoring would be appropriate, he was unable to provide a definite

location for a host site. It is not the State’s obligation to provide the court with a location where

the defendant can reside pretrial. Accordingly, we reject defendant’s claim that the trial court erred

in finding that, under these circumstances, no condition or combination of conditions could

mitigate the real and present threat to the safety of the victim. If the circumstances change,

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defendant may move to be heard under sections 110-6(g) or 110-6.1(i-5) of the Code (725 ILCS

5/110-6(g), 6.1(i-5) (West 2022)).

¶ 18 As for defendant’s arguments regarding whether there existed a condition or combination

of conditions which would reasonably ensure the appearance of defendant for later hearings or

prevent defendant from being charged with a subsequent felony or Class A misdemeanor, this

standard is only applicable to a petition to revoke under section 110-6 of the Code (725 ILCS

5/110-6) (West 2022)) and has no bearing on the instant appeal.

¶ 19 For these reasons, the trial court did not err in denying defendant pretrial release and we

affirm the judgment of the Kane County circuit court.

¶ 20 Affirmed.

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