2019 IL App (1st) 172383-U No. 1-17-2383 Order filed December 16, 2019 First 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 ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) No. 15 CR 5581 v. ) ) Honorable Charles P. Burns, VICENTE SALGADO, ) Judge presiding. ) Defendant-Appellant. )
PRESIDING JUSTICE GRIFFIN delivered the judgment of the court. Justices Hyman and Walker concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s sentence for first degree murder where the trial court did not abuse its discretion in imposing a sentence within the statutory range and did not consider a factor inherent in the offense.
¶2 Following a jury trial, defendant Vicente Salgado was found guilty of first degree murder
(720 ILCS 5/9-1(a)(2) (West 2014)) and sentenced to 34 years’ imprisonment. On appeal, he
argues his sentence is excessive and the trial court impermissibly considered a factor inherent in
the offense in imposing sentence. For the following reasons, we affirm. No. 1-17-2383
¶3 The evidence at trial showed that defendant was married to Rupertina Gonzalez for 25
years. The couple separated in January 2015 after Gonzalez stated she wanted a divorce, and
defendant moved out of their shared residence. The following month, defendant learned Gonzalez
was in a relationship with the victim, Juan Manuel Martinez-Olivares. Defendant learned of their
relationship when he went to his shared residence with Gonzalez and found her home with
Martinez in the bathroom. He later discovered photographs of Martinez on Gonzalez’s cell phone.
¶4 On March 7, 2015, Gonzalez and defendant arranged to meet at a Burger King at 3 p.m.
Defendant, who had a knife in his pocket, arrived at the restaurant and found Gonzalez there with
Martinez. Defendant and Gonzalez spoke for 30 minutes. Following their conversation, Gonzalez
and Martinez walked out of the restaurant with defendant following them. Gonzalez feared
defendant, who had told her she “was going to regret it.” Gonzalez and Martinez both told
defendant to let her go, and defendant attacked Martinez, stabbing him and causing him to fall to
the ground. While Martinez was on the ground, defendant continued hitting him and stabbed him
repeatedly. A man pulled defendant off of Martinez, and defendant fled. He was arrested on a
Chicago Transit Authority bus, which he had boarded without a coat and after turning his pants
backwards.
¶5 The autopsy revealed that Martinez’s cause of death was multiple stab and incised wounds.
Martinez sustained 24 wounds to his neck, chest, abdomen, head, face, arm, and eyelid, several of
which were fatal on their own, including a three-inch deep stab wound to his neck and a stab wound
to his left chest, which involved his heart and pericardium. Martinez also sustained an L-shaped
stab wound to the right side of his face, meaning that the knife “came out a different path from
how it entered the body.” The L-shaped wound was the result of either the perpetrator having
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“difficulty taking the knife out and twist[ing]” it inside the body as the knife was entering and
exiting, or the victim moving.
¶6 Defendant testified that on the day in question he left work around 2 p.m. He went to his
son’s house but did not have a key to get inside one of the doors. To get inside, defendant used a
knife to pop the door open. He then put the knife in his pocket and went to meet Gonzalez at Burger
King. After speaking with Gonzalez, defendant walked out of the restaurant behind her. He
grabbed her hand and asked her to “think things over, that her daughter needed her.” Martinez
punched defendant’s hand, pushed him, and hit him in the chest, but defendant did not sustain any
injuries. Martinez told defendant that if he touched Gonzalez again, he was going to “f***
[defendant] up.” In response, defendant told Martinez, “[D]on’t get involved, this is not your
business.” He then stabbed Martinez, although he could not recall how many times. Martinez
“attack[ed]” him with his hands, but defendant “did not allow” Martinez to injure him. Defendant
fled, turned his pants around, and discarded his jacket and the knife.
¶7 The jury found defendant guilty of first degree murder. The court denied defendant’s
motion for a new trial.
¶8 At sentencing, the court noted it had reviewed the presentence investigation report (PSI).
The PSI showed defendant was 40 years old at the time of the incident and was born in Mexico.
He attended elementary school and high school in Mexico and later moved to the U.S. Defendant
had been employed at the High Noon Saloon from 2013 until his incarceration. He had two
children with Gonzalez. Defendant had no criminal history.
¶9 In aggravation, the State argued that defendant failed to take responsibility for his actions
and instead blamed Martinez for his own death. Defendant had not “just learned” about Martinez’s
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relationship with Gonzalez at the time of the offense; rather, defendant had known about their
relationship since February 2015. The State emphasized that Martinez told defendant to “let
[Gonzalez] go,” and defendant retaliated by “brutally stabb[ing] him dozens of times,” leaving
Martinez’s children without a father. Finally, the State asked that the court impose a 40-year
sentence, arguing that although defendant did not have a criminal background, the brutality of the
murder and defendant’s refusal to accept responsibility warranted a sentence above the minimum.
¶ 10 The State presented victim impact statements from the mother of Martinez’s children,
Veronica Velez; his son, Alexis Martinez; and his daughter, Adriana Martinez. In their statements,
Martinez’s family members expressed their grief and described the impact that Martinez’s death
had on their lives.
¶ 11 In mitigation, defense counsel asked for the minimum sentence. Counsel argued defendant
had numerous long-term jobs and supported his family. Counsel emphasized defendant’s strong
family ties and stated that, in court, defendant had been respectful and cooperative. Counsel noted
that Martinez’s murder was not premeditated, as Gonzalez testified that defendant did not know
Martinez would be present at Burger King on the day in question. Instead, defendant “snapped
based on the pressure of what was going on in his dissolving marriage.” Defendant, however, had
“no risk of reoffending” and had no criminal background.
¶ 12 Additionally, counsel mentioned that defendant had been utilizing available resources
while incarcerated, including taking General Education Development (GED) and English classes.
A guard in jail told defense counsel “how cooperative and what a fabulous inmate [defendant] was
and how he really has been working hard at the programs he’s in.”
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¶ 13 Marco Gonzalez, defendant’s and Gonzalez’s nephew, testified that he had known
defendant his entire life. Defendant was a “family man” and was close to his children. Marco
worked with defendant at two restaurants, the High Noon Saloon and Taco Fresco, where he was
the lead line cook. Defendant was an “exemplary” worker and always on time. Defendant
supervised three people as the lead line cook.
¶ 14 Defendant submitted a mitigation report, which detailed defendant’s background and
mitigating factors warranting the minimum sentence. In preparing the report, the office of the
Public Defender interviewed defendant, defendant’s brother Pedro Salgado, defendant’s son
Eduardo Salgado, defendant’s daughter-in-law Jasley Salgado, and Marco. Under the background
section, the report showed defendant was born in Mexico and raised on a small farm, where he
worked from age eight. Defendant was the youngest of 11 children. He finished secondary school
in Mexico. Defendant was still close with his family, although they lived in different locations in
both the U.S. and Mexico.
¶ 15 Defendant met Gonzalez when he was 16 years old. They dated for eight months and then
married. When defendant was 18 years old, the couple had a son, Eduardo. At that time, defendant
had been working in an auto parts store. Three years later, defendant learned Gonzalez was having
an affair. Eventually, Gonzalez and defendant reconciled. They had a daughter, Joanna Salgado,
in 2002.
¶ 16 At some point, defendant and Gonzalez moved to Chicago, where they both had family.
They lived with defendant’s brother, Pedro. Pedro met Gonzalez for the first time in Chicago but
was not impressed with how she treated defendant. Gonzalez called defendant “Indian,” a
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derogatory term in Mexico that “city people” use to refer to those in rural areas. According to
Pedro, Gonzalez continued to belittle defendant throughout the course of their marriage.
¶ 17 Defendant’s first priority was his family. In Chicago he often worked multiple jobs so that
Gonzalez could stay home to raise their children. When Eduardo was in high school, he and his
then-girlfriend, Jasley, had a baby. To ensure they could finish school, defendant reduced his work
hours in order to help care for his granddaughter and allowed Jasley to live with them.
¶ 18 The report also set forth various factors in mitigation, including that (1) defendant acted
under strong provocation, (2) his conduct was induced by someone else, (3) he had no history of
criminal activity and had led a law-abiding life, (4) his conduct was the result of circumstances
unlikely to occur, (5) his character and attitude indicate he is unlikely to commit another crime,
and (6) his imprisonment would entail excessive hardship on his dependents.
¶ 19 In addition to the mitigation report, defendant submitted seven character reference letters
from his family members, friends, and former employer. Virginia Ortiz stated she had known
defendant since they were children living in Mexico. Ortiz and defendant both later moved to
Chicago. She described defendant as “calm” and “very passive.” Defendant was respectful and
was not involved in problems, instead dedicating his time to working so he could provide for his
family. Gonzalez never had to work because defendant took care of their expenses. Ortiz believed
defendant deserved a second chance and would continue to be a good man and father in the future.
¶ 20 Defendant’s niece, Susana Salgado Ortiz, wrote that defendant worked hard to provide for
his family. She remembered defendant engaging in conversations with her and the other children
in their family. He was also dedicated to his children. Susana avoided defendant’s house for several
years because she noticed that defendant “showed signs of economic and psychological abuse,”
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although he always made her feel comfortable and welcome. Susana was a Human Development
and Family Life Studies specialist for a nonprofit organization, Centro Romero, in Chicago. She
believed defendant could “commit to self-improvement” and would have the Centro Romero
organization as a resource when he was released.
¶ 21 In addition to his testimony, Marco also submitted a letter in mitigation. He reiterated that
defendant was his uncle and they had worked together. He also described defendant as a “joyful
family man” who displayed kindness and compassion. Defendant was a positive influence on
Marco due to his work ethic and perseverance. Marco believed defendant would learn from his
mistake and come out of incarceration “a better man,” who would try to move forward and
continue supporting his children.
¶ 22 Defendant’s niece, Maria D. Salgado, wrote that defendant played with her when she was
a child, despite being tired from working. Defendant was a role model for Maria and others in their
family. He had shown “patience and humility” “[e]ven under the current circumstances.” Maria
described defendant as a hardworking man who provided for his family and elderly parents in
Mexico. He traveled almost an hour on public transportation to get to work and two hours to visit
his family. Despite working long hours, defendant would make every family event and always
offered to help.
¶ 23 Maria further detailed defendant’s issues with Gonzalez. Defendant had found Gonzalez
cheating on him in their marital residence. Although he moved out of the residence, defendant
continued paying rent for Gonzalez and their young daughter to live there. Maria’s father gave
defendant advice about the marriage, and defendant always listened patiently.
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¶ 24 Maria was “shock[ed]” by defendant’s crime but believed defendant still displayed good
character. She believed the “only explanation” for defendant’s actions was that “[i]t was very
obvious that [defendant] was being mentally abused by his wife.” Their family noticed the abuse
but did nothing. Maria could recall Gonzalez calling defendant “dumb” and “tell[ing] him he was
not even good at financially maintaining her lifestyle.” Defendant worked, cooked, and attended
to guests in his household. Maria recalled instances where Gonzalez belittled defendant, and he
would apologize to her rather than react aggressively. Maria believed defendant “act[ed] like a
different person” on the day of the murder due to “the events in his relationship and all those years
of being pushed around by his wife.” Nevertheless, Maria still knew defendant was patient,
humble, and responsible. He asked Maria’s father to send money to his parents rather than having
it deposited into his commissary account. Maria’s family was willing to support defendant and
help him become a productive member of society upon his release.
¶ 25 Defendant’s sister-in-law Alicia Salgado Ortiz wrote that she had known defendant since
she was five years old. She had never witnessed him involved in issues with others and knew him
to be a hard worker and good father. Alicia witnessed Gonzalez belittle defendant and refuse to
work. However, defendant “always just smiled and never talked back to her.” Defendant was
helpful and always had a smile on his face. After serving his sentence, Alicia thought defendant
would continue to help everyone.
¶ 26 Pedro, defendant’s brother, wrote that defendant was a “family man.” He moved to the
U.S. for a better life and always worked two jobs “to please” Gonzalez, who stated she was married
“to ‘be taken care of and not to take care of anyone.’ ” Gonzalez would make defendant feed their
baby in the middle of the night, even after he had worked all day. When Pedro confronted Gonzalez
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about forcing defendant to wake up in the middle of the night, she left his apartment. Defendant
was patient with Gonzalez and “was always trying to please her,” although she treated him as
inferior. Pedro and his children did not like visiting defendant’s home because Gonzalez treated
him poorly. Defendant, however, maintained an optimistic outlook and continued providing for
his family and extended family in Mexico. Pedro and the rest of defendant’s family supported him.
Pedro believed that “years and years of bullying and mental abuse played a major part in how
things happened.” Defendant had never been violent and “the situation he is in is a result of him
being humiliated by his spouse and her lover.”
¶ 27 Baris Yuksel, the owner of the High Noon Saloon, submitted a letter describing defendant
as a hard worker. Yuksel described defendant as “one of the nicest and friendliest people you can
meet in the restaurant business,” who never raised his voice or had “so much as an argument with
anyone.” Yuksel was shocked to hear about the incident as it was out of character for defendant.
¶ 28 In allocution, defendant stated, “I regret for what I did and I’m conscious that I deserve a
punishment, but I’m also conscious that I’m being accused of something that I did not start.”
¶ 29 The court sentenced defendant to 34 years’ imprisonment. In imposing sentence, the court
considered defendant’s rehabilitative potential, “both statutory and nonstatutory” factors in
aggravation and mitigation, the deterrent effect the sentence would have on others, and the need
to punish defendant “for taking the life of another individual clearly without justification
whatsoever.” With respect to mitigating evidence, the court noted defendant’s lack of criminal
history, good character, employment history, significant familial relationships, and the letters
written by various family members and acquaintances. However, the court expressed concern
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“about what happened in the trial” and “about how everybody seems to be blaming the victim in
this matter.”
¶ 30 In considering defendant’s rehabilitative potential, the court mentioned that defendant
failed to take responsibility for his actions and instead “even today he’s indicating that *** it was
someone else’s responsibility that put him in that situation.” The court pointed out that defendant
arrived on the scene with a knife. The court went on, “And whatever happened during the
conversation, instead of just walking away or even throwing a punch, he pulls out that knife and
repeatedly plunges that knife into the victim.” The court discussed Martinez’s various wounds and
that defendant fled the scene and hid the knife. Although the court acknowledged the complications
involved in “breakups,” it stated, “that does not allow people to take knives out and to *** end the
relationship by slicing the individual up as if a chef was slicing up salad fixings for dinner.”
Ultimately, the court acknowledged that defendant “has a lot of mitigating factors here, but I
cannot separate myself *** from the fact that this is in fact a very egregious crime, it’s a very
violent crime, and it is something that frankly cannot be explained, justified, or condoned.”
¶ 31 Defendant filed a motion to reconsider sentence. The court denied the motion, stating, “The
sentence is well within the range of sentencing possibilities here. I think it’s reasonable and
commensurate with the crime the defendant committed and mitigating factors.”
¶ 32 On appeal, defendant argues his sentence is excessive in light of the “extreme emotional
distress” that accompanied the crime. Because the circumstances that accompanied his crime were
unlikely to occur again, he alleges the trial court abused its discretion in sentencing him above the
minimum.
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¶ 33 When sentencing a defendant, a trial court must consider both “the seriousness of the
offense” and “the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I,
§ 11; People v. Wilson, 2012 IL App (1st) 101038, ¶ 61. Generally, where a sentence imposed by
the trial court is within the statutory limits permitted for the offense, we will not disturb the
sentence absent an abuse of discretion by the court. People v. Burton, 2015 IL (1st) 131600, ¶ 36.
A sentence within the statutory range is not an abuse of discretion unless it is “manifestly
disproportionate to the nature of the offense.” People v. Jackson, 375 Ill. App. 3d 796, 800 (2007).
¶ 34 The trial court, in imposing sentence, considers such factors as “a defendant’s history,
character, and rehabilitative potential, along with the seriousness of the offense, the need to protect
society, and the need for deterrence and punishment.” People v. Hernandez, 319 Ill. App. 3d 520,
529 (2001). The trial court, having observed the proceedings, is in the best position to weigh the
relevant sentencing factors. People v. Arze, 2016 IL App (1st) 131959, ¶121. Accordingly, we do
not substitute our judgment for that of the trial court merely because we would have balanced the
appropriate sentencing factors differently. People v. Alexander, 239 Ill. 2d 205, 214 (2010).
¶ 35 In this case, defendant was sentenced to 34 years’ imprisonment, well within the statutory
range of 20 to 60 years for first degree murder. 730 ILCS 5/5-4.5-20 (West 2016). We therefore
presume the sentence was proper absent some indication that the court abused its discretion. People
v. Burton, 2015 IL (1st) 131600, ¶ 36.
¶ 36 The record shows that the court, in imposing sentence, heard arguments from the parties
and considered the PSI, defendant’s mitigation report, the character reference letters submitted by
his friends and family, his rehabilitative potential, defendant’s statement in allocution, and the
“statutory and nonstatutory” factors in aggravation and mitigation. The court further considered
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the violent nature of the crime, defendant’s lack of responsibility, the deterrent effect of the
sentence, and the need to punish defendant for the crime. The record, therefore, reflects that the
court considered the relevant sentencing factors in imposing sentence. Despite defendant’s
contention that the court failed to consider his rehabilitative potential, the court explicitly
acknowledged it at sentencing and considered the PSI. See People v. Babiarz, 271 Ill. App. 3d
153, 164 (1995) (“Where the sentencing court examines a presentence report, it is presumed that
the court considered the defendant’s potential for rehabilitation.”). Because the court considered
the relevant sentencing factors, we decline defendant’s invitation to reweigh those factors and
conclude his sentence is excessive. People v. Burke, 164 Ill. App. 3d 889, 902 (1987) (where the
trial court properly considered relevant sentencing factors, it is not the function of a reviewing
court to rebalance those factors on appeal).
¶ 37 Nevertheless, defendant maintains that the court failed to give adequate weight to the
substantial mitigating evidence in this case. Contrary to defendant’s assertion, the record flatly
rebuts this contention. The court heard and acknowledged the extensive evidence in mitigation
prior to imposing sentence. As noted, this included defense counsel’s argument in mitigation, a
nine-page mitigation report, multiple character reference letters, and testimony from defendant’s
nephew. The mitigation report detailed defendant’s background and various mitigating factors,
including the argument that defendant acted under strong provocation and would not likely
reoffend. The court noted that it had reviewed defendant’s PSI prior to the hearing.
¶ 38 Moreover, although defendant alleges the court failed to consider evidence of Gonzalez’s
affair, the court spoke about the complications arising from breakups at sentencing, demonstrating
that it did consider the “distressing” circumstances defendant was in before imposing sentence.
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After acknowledging the significant evidence in mitigation, the court expressed concern with the
violent nature of the offense and defendant’s refusal to accept responsibility for his actions and
found the minimum sentence was not appropriate. See People v. Decatur, 2015 IL App (1st)
130231, ¶ 12 (while the trial court must consider mitigating factors, the seriousness of
the offense is an important factor for the trial court to consider when imposing a sentence). Thus,
nothing in the record support’s defendant’s argument that the court failed to adequately consider
mitigating evidence. Defendant merely disagrees with the weight the trial court accorded to the
evidence presented. However, the trial court was not required to assign more weight to the
mitigating factors than to the circumstances surrounding the offense (People v. Alexander, 239 Ill.
2d 205, 214 (2010)), and the presence of mitigating factors did not require that the trial court
impose the minimum allowable sentence (People v. Jones, 2014, IL App (1st) 120927, ¶ 55).
Because defendant has failed to show that the trial court abused its discretion or that his sentence
was greatly at variance with the law, we find no basis to disturb his 34-year sentence.
¶ 39 Defendant additionally argues that the court relied on an improper factor inherent in the
offense in order to impose a harsher sentence. He claims the court impermissibly relied upon the
violence inherent in first degree murder and “clearly placed great weight on Martinez’s violent
death.” The State argues defendant failed to preserve this issue by failing to object and include it
in his postsentencing motion. Defendant asks that we review it under the plain error doctrine.
¶ 40 Sentencing issues are forfeited for review unless the defendant both objects to the error at
the sentencing hearing and raises the objection in a postsentencing motion. People v. Powell, 2012
IL App (1st) 102363, ¶ 7. Nevertheless, forfeited sentencing issues may be reviewed for plain
error. Id. To obtain relief under the plain error doctrine in the sentencing context, a defendant must
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show either that (1) the evidence at the sentencing hearing was closely balanced, or (2) the error
was so egregious as to deny the defendant a fair sentencing hearing. People v. Wooden, 2014 IL
App (1st) 130907, ¶ 10. Before we consider application of the plain error doctrine, we must
determine whether any error occurred. Id.
¶ 41 We disagree that the court improperly relied on a factor inherent in the offense in
sentencing defendant. Although a trial court may not use the existence of an element inherent in
the offense as an aggravating factor, it has the discretion to consider the “nature and
circumstances” specific to a case, including “the nature and extent of each element of
the offense as committed by the defendant.” (Internal quotation marks omitted.) People v.
Saldivar, 113 Ill. 2d 256, 268-69 (1986). In this case, the court found defendant’s crime particularly
“egregious” based on the severity of Martinez’s wounds. As previously discussed, one of the
relevant sentencing factors is the seriousness of the offense. Hernandez, 319 Ill. App. 3d at 529.
Further, the trial court need not “ignore factors relevant to the imposition of the sentence.”
Saldivar, 113 Ill. 2d at 268. Because the court did not err in this regard, there was no plain error.
People v. Spicer, 379 Ill. App. 3d 441, 449 (2007) (without error, there is no plain error).
Accordingly, we find defendant’s 34-year sentence was not an abuse of discretion, and the trial
court did not impermissibly rely on a factor inherent in the offense in imposing such a sentence.
¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 43 Affirmed.
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