No. 1-13-0076 Opinion filed November 5, 2014 Third Division _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

) Appeal from the Circuit Court THE PEOPLE OF THE STATE OF ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) 10 CR 5866 v. ) ) IGNACIO VALADOVINOS, ) The Honorable ) Arthur F. Hill, Jr., Defendant-Appellant. ) Judge, presiding. ) ______________________________________________________________________________

JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.

OPINION

¶1 A jury convicted defendant, Ignacio Valadovinos, of attempted first degree murder while

personally discharging a firearm (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)) in a shooting

outside a bar at 25th Street and California Avenue. Valadovinos fired five gunshots toward

Ernesto Fernandez and sped off, leading to a car chase and foot pursuit by Chicago police

officers. No. 1-13-0076

¶2 Valadovinos raises three issues on appeal: (i) the trial court improperly instructed the jury

on the attempted first degree murder charge by not telling the jury to find Valadovinos

specifically intended to kill Ernesto Fernandez rather than "an individual"; (ii) in sentencing

Valadovinos to 43 years in prison, the trial court failed to give proper weight to the mitigating

evidence and impermissibly considered aggravating factors actually inherent in the offense; and

(iii) he was shorted on credit for days spent in presentencing custody.

¶3 We affirm Valadovinos’s conviction and sentence, and instruct the circuit clerk to correct

the mittimus. First, while Valadovinos failed to object to the attempted first degree murder

instruction, and did not raise the issue in his posttrial motion, the trial court committed no plain

error in the instructions. Second, the trial judge imposed a sentence within the statutory range,

and this decision is entitled to great deference and weight. Moreover, the trial court did not

consider impermissible aggravating factors. Finally, Valadovinos correctly asserts that his

mittimus should be adjusted to reflect a presentence credit of 692 days in custody.

¶4 BACKGROUND

¶5 In the early hours of February 28, 2010, a fight involving about 10 people broke out in a

bar near 25th Street and California Avenue. Bar security pushed the brawlers out to the street.

Among the group were Ernesto Fernandez, his brother Carlos Fernandez, and their cousin Ebelia

Ocampo. As the fight continued, Ernesto and three or four other people stood in the middle of

California Avenue; the rest of the group stood on the adjoining sidewalk. Suddenly, a green

Dodge Stratus sped down California Avenue, stopping just past the people positioned in the

middle of the street. A male Hispanic, whom Ernesto did not recognize but later identified as the

defendant, got out of the front passenger seat, pulled out a gun, and from about 40 feet away,

opened fire at Ernesto.

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¶6 Valadovinos advanced forward and continued to fire at Ernesto as Ernesto dodged the

oncoming bullets. Valadovinos fired a shot, from a range of between 4 and 10 feet, at Ernesto,

which hit the ground near Ernesto. Valadovinos then ran back toward the car, but before getting

there, pointed his gun toward Carlos. Carlos made eye contact with Valadovinos, and while the

gun was aimed at him, Carlos heard a click. Valadovinos got in the front passenger door, and the

car took off northbound on California Avenue.

¶7 Chicago police lieutenant Paul Kane happened to be driving northbound on California

toward 25th Street when he saw the fight outside the bar, and heard the sound of four or five

gunshots. Lieutenant Kane reported shots fired and radioed in the description of the green

Dodge Stratus.

¶8 Chicago police officers Lobianco, Pruger, Mueller, and Lopez heard the report and

proceeded to the area in a single squad car. Kane, meantime, pursued the car as it took off

northbound on California Avenue, and as he caught up to it, Valadovinos ran out of the car.

Lieutenant Kane followed the car in his marked squad, while Officers Lobianco and Lopez, who

had arrived on the scene, pursued Valadovinos on foot. Lobianco and Mueller saw Valadovinos

holding a handgun in his left hand, and Lobianco saw him drop the gun as he was running.

Officer Pruger followed the chase in his squad, and then on foot. Pruger caught Valadovinos and

tackled him to the ground. Valadovinos then head butted Pruger on the left side of his face.

Officer Mueller witnessed the head butt and assisted in taking Valadovinos into custody.

¶9 An evidence technician recovered a semiautomatic pistol where Valadovinos had

dropped it and five cartridge cases from the scene of the shooting. A forensic scientist analyzed

the cartridge cases and concluded all were fired from the semiautomatic pistol.

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¶ 10 The State indicted Valadovinos on three counts of attempted first degree murder while

personally discharging a firearm (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)), two counts of

aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2010)), three counts of

aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1) (West 2010)), and two counts of

aggravated battery of a police officer (720 ILCS 5/12-4(b)(18) (West 2010)). At trial, Ernesto

and Carlos Fernandez and Ebelia Ocampo identified Valadovinos as the assailant.

¶ 11 The trial court gave the following jury instructions for attempted first degree murder,

modeled after the pattern jury instructions for attempted first degree murder. Illinois Pattern Jury

Instructions, Criminal, Nos. 6.05X and 6.07X (4th ed. 2000):

“A person commits the offense of attempt first degree murder when he, with the

intent to kill an individual, does any act which constitutes a substantial step toward the

killing of an individual.

The killing attempted need not have been accomplished.”

“To sustain the charge of attempt first degree murder, the State must prove the

following propositions:

First: That the defendant performed an act which constituted a substantial step toward

the killing of an individual; and

Second: That the defendant did so with the intent to kill an individual.

If you find from your consideration of all the evidence that each one of these

propositions has been proved beyond a reasonable doubt, you should find the defendant

guilty.

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If you find from your consideration of all the evidence that any one of these

propositions has not been proved beyond a reasonable doubt, you should find the

defendant not guilty.” (Emphases in original.)

¶ 12 On the charge of aggravated discharge of a firearm, the instructions read:

“To sustain the charge of aggravated discharge of a firearm, the State must prove the

following propositions: First: That the defendant knowingly discharged a firearm; and

Second: That the defendant discharged the firearm in the direction of Ernesto

Fernandez.”

¶ 13 During deliberations, the jury sent this note: “Can we find the defendant guilty of

aggravated discharge of a weapon if we believe he was aiming in the general direction of people,

or do we have to believe he was firing specifically in the direction of Ernesto or another specific

individual?” (Emphasis in original.) The trial court answered the question with a note stating,

“You have the instructions. Please continue to deliberate.”

¶ 14 The jury found Valadovinos guilty of attempted first degree murder, and that he

personally discharged a firearm, guilty of aggravated discharge of a firearm, and guilty of

aggravated battery of a peace officer.

¶ 15 At sentencing, the State offered aggravating evidence, showing Valadovinos was: (i) a

self-identified Satan Disciple gang member, and his primary area of gang activity was the

intersection of 24th Street and Rockwell; and (ii) on bond at the time of the shooting for a 2008

charge of attempted first degree murder. Valadovinos offered mitigating evidence that he had no

criminal history, was 23 years old at sentencing, was acquitted of the prior attempted murder

charge, and harmed no one in the shooting.

¶ 16 Before imposing the sentence, the trial judge stated:

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“THE COURT: I have heard the arguments of the lawyers. Of course I have

considered the presentence investigation. I remember the testimony during the course of

the trial. I take to heart many of the arguments that [defense counsel] has put forward to

this court today. At the same time, I remember the level of sort of violence that this

offense represents. Not far from this very courthouse.”

¶ 17 The trial court sentenced Valadovinos to 43 years in the Illinois Department of

Corrections—23 years for the attempted murder charge, within the 6-to-30-year statutory

mandated guideline for a Class X felony, and a 20-year mandatory enhancement for personally

discharging a firearm. The aggravated discharge of a firearm count merged into the attempted

murder count. Valadovinos received a sentence of five years for aggravated battery of a peace

officer, which the trial court ordered to run concurrently with the other sentences.

¶ 18 The court instructed Valadovinos on filing a motion for a new sentencing hearing. The

court warned Valadovinos, however, that he had to list every single reason why he should be

allowed a new sentencing hearing, and if Valadovinos forgot to list a reason, he could never

argue that reason on appeal. Valadovinos filed a motion for a new trial, which made no

allegation of improper jury instructions and no allegation that the trial court improperly

considered aggravating factors at the sentencing hearing. The trial court denied Valadovinos’s

motion, and this timely appeal followed.

¶ 19 ANALYSIS

¶ 20 Jury Instruction for Attempted First Degree Murder

¶ 21 Valadovinos argues that the trial court violated his right to have the jury properly

instructed for attempted first degree murder when he instructed the jury that it needed to find

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Valadovinos intended to kill “an individual” rather than intended specifically to kill Ernesto

Fernandez.

¶ 22 The indictment for attempted first degree murder named Ernesto Fernandez as the

intended victim. Valadovinos argues that because the jury instruction did not specify Ernesto,

and the indictment did, the jury likely thought the State only had to prove beyond a reasonable

doubt that Valadovinos intended to kill "an individual" and not Ernesto, as the State was required

to prove.

¶ 23 Jury instructions should explain the correct principles of law that apply to the evidence so

the jury can "arrive at a correct conclusion according to the law and the evidence." (Internal

quotation marks omitted.) People v. Anderson,

; People v.

Ramey,

(1992) ("[T]he jury may, by the application of proper legal

principles, arrive at a correct conclusion according to the law and the evidence." (Internal

quotation marks omitted.)). Additionally, the instructions must plainly set out the applicable

law, and not be misleading or confusing. Anderson,

. When a

jury does not receive proper guidance though instructions, it cannot perform its constitutional

functions and thereby violates a defendant’s right to a fair trial. People v. Pollock,

(2002). Reversal is required when an instructional error “creates a serious risk that the

jurors incorrectly convicted the defendant because they did not understand the applicable law, so

as to severely threaten the fairness of the trial.” (Internal quotation marks omitted.) People v.

Durr,

(2005). Where jury instructions are unclear or ambiguous, a

reviewing court can look to the opening statements and closing arguments for clarification. See

People v. Stevenson,

(1990).

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¶ 24 Generally, we review jury instructions for an abuse of discretion. People v. Hammonds,

(2011). When the issue is whether the jury instructions accurately

explain the law, the standard of review is de novo.

¶ 25 Before determining if the trial court erred on the jury instructions, we note Valadovinos

raises this issue for the first time on appeal. Generally, we will not review jury instruction error

when the defendant has neither objected to the instruction, nor offered "an alternative instruction

at trial and does not raise the instruction issue in a posttrial motion." People v. Herron,

(2005); People v. Sargent,

(2010). Illinois Supreme Court

Rule 451(c) provides a limited exception, which states that criminal jury instructions containing

substantial defects “are not waived by failure to make timely objections thereto if the interests of

justice require.” Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013). The rule corrects “grave errors,”

namely, (i) errors so serious that they deny the defendant a substantial right, and (ii) errors in

cases so factually close that fundamental fairness requires that the jury be properly instructed.

Sargent,

.

¶ 26 During trial Valadovinos received a copy of the jury instructions and lodged no

objections to the first degree attempted murder instruction. Nor did he offer any alternate

instructions. After sentencing, Valadovinos filed a motion for a new trial, which omits any

mention of improper jury instructions. Valadovinos now raises the issue for the first time. We

will review the propriety of the jury instructions only if the jury instructions contain substantial

defects which amount to plain error. But even before we determine plain error, we must decide

whether error occurred. People v. Piatkowski,

(2007). We find no error

regarding the first degree attempted murder instruction under these facts.

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¶ 27 Illinois Supreme Court Rule 451(a) directs that the trial court follow the Illinois Pattern

Jury Instructions, Criminal, unless the trial court decides that it does not accurately reflect the

law. Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013). The attempted first degree murder instructions

given to the jury closely followed the pattern instructions for attempted first degree murder, but

the instructions given had the propositions labeled as “First” and “Second” rather than “First

Proposition” and “Second Proposition.” The instructions vary in a minor, nonsubstantive way.

¶ 28 In People v. Malone, the appellate court held an attempted first degree murder jury

instruction did not need to include the name of the intended victim. People v. Malone,

(1976). The court thought the jury understood who the victim of attempted

murder was, and it could see no reason to reverse on this ground. There, the facts did not render

the instructions inadequate, as they gave due consideration to the facts and governing law.

Additionally, the court noted the name of the victim is not an element of attempted first degree

murder, nor is there a place for the victim's name in the Illinois Pattern Jury Instructions.

¶ 29 Unless we find the instructions did not accurately reflect the law under the facts

presented, the standard pattern instructions are appropriate. As discussed below, there is no basis

for modification of the basic instructions.

¶ 30 The inclusion in the jury instructions of an attempted first degree murder victim’s name

was necessary in People v. Anderson,

. There, the trial court gave the

jurors virtually identical instructions as here. Id. ¶ 58. But, Anderson involved two separate

victims, a victim of murder and a victim of attempted first degree murder. Id. ¶ 56. The court

found that the jury could have mistaken the instruction and confused the identity of the intended

victim of the attempted first degree murder. Id. ¶ 64.

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¶ 31 Valadovinos contends the jury may have been confused by the instructions and thought

that it only had to find he intended to kill any individual on the street that night rather than find

that the State proved he intended specifically to kill Ernesto. Valadovinos’s argument fails.

¶ 32 First, Valadovinos uses the crime's apparent random nature to suggest he may not have

specifically targeted Ernesto and that the jury may have thought someone else was the target.

Valadovino argues that several people there could have been a target because Ernesto did not

recognize or know Valadovino, and because the sequence of events are such that Valadovinos

could not have had any idea that when he drove up, Ernesto would be there.

¶ 33 We find this argument unconvincing. Random as the shooting may appear, the

overwhelming evidence shows, for whatever reason, Valadovinos singled out Ernesto as the sole

target of all five shots. While other potential victims certainly were there, Ernesto was the one

person targeted by Valadovinos.

¶ 34 Moreover, at voir dire, the trial judge read the indictment to the pool of potential jurors,

“First is attempt first degree murder on or about the date of February 28, 2010, in that he,

without legal justification, with intent to kill, did an act to wit, shot at Ernesto Fernandez about

the body while armed with a firearm.” (Emphasis added.) Thus, from the beginning of the trial,

the jurors were informed that Ernesto was the only target of all five shots.

¶ 35 In the State's opening statement, the Assistant State’s Attorney told the jury that to find

Valadovinos guilty of attempted murder, they must find he intended to kill Ernesto, specifically.

And, in the State’s closing argument, the prosecutor told the jury, “Although there were other

people out on that street, the defendant never pointed that gun at anyone else. He never pointed

it anywhere else. He pointed it at the victim, Ernesto Fernandez, and he fired it.” (Emphasis

added.) In closing, the State also repeatedly referred to Ernesto as the only attempted first degree

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murder victim, saying, "the defendant, Ignacio Valadovinos, attempted to execute Ernesto

Fernandez," "He ran at Ernesto Fernandez with a gun in his hand and fired at him five times,"

and "Make no mistake, Ladies and Gentlemen. This man, this defendant intended to kill Ernesto

Fernandez." Thus, the jury was well informed that the sole intended target was Ernesto.

¶ 36 Even if the instructions, absent Valadovinos’s name, did amount to error, the error was

not so serious that it affected the fairness of the defendant’s trial, nor did it challenge the

integrity of the judicial process. Likewise, we would not consider the evidence to be closely

balanced. Ernesto testified that he saw Valadovinos get out of the car, and immediately fire his

gun. Valadovinos was shooting and running toward him, and only him. Carlos testified that

Valadovinos aimed his gun directly at Ernesto and approached Ernesto while firing. In contrast,

no testimony or other evidence suggests any intended target other than Ernesto. Because the

evidence points solely to Ernesto as the only target, the second prong cannot be satisfied.

¶ 37 Jury Note

¶ 38 Next, Valadovinos argues the jury's note demonstrates that the jury harbored doubts

about whether the State proved Valadovinos fired specifically at Ernesto. Valadovinos asserts

the note denotes that the jury interpreted the instruction to allow for shooting specifically in the

direction of another individual, or even in the general direction of people.

¶ 39 We initially observe that the jury's note did not ask for clarification on the attempted

murder instruction, but on the aggravated discharge of a weapon instruction. We disagree with

Valadovinos that the jury misunderstood either instruction. Both instructions unambiguously

conveyed the correct principles of law. We do not read the jury’s note as misinterpreting the

law, but as attempting to make certain the jury understood the law. "Where a jury has raised an

explicit question on a point of law arising from the facts over which there is doubt or confusion,

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the court should attempt to clarify the question in the minds of the jury members." (Internal

quotation marks omitted.) People v. Reid,

(1990). The jurors sought to be

certain that they had to find that Valadovinos aimed and fired specifically in the direction of

Ernesto to find him guilty of aggravated discharge of a firearm. The court responded that the

instructions were correct and asked the jury continue deliberations.

¶ 40 Less than two hours later, the jury returned with a verdict. Valadovinos was found guilty

of attempted first degree murder and aggravated discharge of a firearm. By convicting

Valadovinos of aggravated discharge of a firearm, they found he shot specifically in the direction

of Ernesto. As the facts show, Valadovinos fired all five shots at Ernesto. The jury must have

understood Ernesto was also the victim of the attempted murder charge, as both charges result

from the same shooting.

¶ 41 Ineffective Assistance of Counsel

¶ 42 Finally, Valadovinos asserts that his trial attorney provided constitutionally ineffective

assistance by failing to object to the jury instructions on the attempted first degree murder. We

reject this contention.

¶ 43 A defendant is denied effective assistance of counsel when counsel’s performance falls

below an objective standard of reasonableness and a reasonable probability exists that, but for

counsel's performance, the trial would have turned out differently. Strickland v. Washington,

(1984). Given that the jury instructions were not erroneous, it was not

objectively unreasonable for Valadovinos’s counsel to forego raising the instruction issue either

through objection or the posttrial motion. People v. Anderson,

.

Further, because there was no error in the instruction, Valadovinos will be unable to show a

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reasonable probability that the trial's outcome would have been different even had his attorney

objected or raised the issue in a posttrial motion.

¶ 44 Mitigating and Aggravating Evidence at the Sentencing Hearing

¶ 45 Valadovinos urges us to conclude that the trial court gave improper weight to the

mitigating evidence at sentencing, such as his age and lack of prior criminal convictions and that

no one got hurt during the shooting. Additionally, Valadovinos argues that the trial court

impermissibly considered facts in aggravation that were inherent to the offense as charged.

¶ 46 In Illinois, sentencing judges impose criminal penalties according to the seriousness of

the crime and with the objective of restoring the offender to useful citizenship. Ill. Const. 1970,

art. I, § 11. This mandate requires courts to do more than consider rehabilitative factors, but

actually act on those factors, lest they impose a sentence effectively negating the likelihood of

rehabilitation. People v. Rickard,

(1981). On appeal, there is a

strong presumption that the sentencing court has considered all relevant factors and any

mitigation evidence presented. People v. Burnette,

(2001). To rebut

this presumption, a defendant must make an affirmative showing that that the sentencing court

did not consider the relevant factors. People v. Canet,

.

¶ 47 Further, the sentencing court may not consider a factor implicit in the offense for which

the defendant has been convicted as aggravating evidence for that offense. People v. Phelps,

(2004). This rule acknowledges that in establishing the sentence range the

legislature has already considered the factors inherent in the offense and created the sentencing

range with the factors in mind. People v. Conover,

(1981). The rule is not

meant to be applied rigidly because sentences vary in accordance with the circumstances of the

particular offense. People v. Spicer,

(2007). When making a

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determination as to whether improper factors were considered, we focus on the entire record as

opposed to a few words or statements made by the sentencing court. People v. Ward,

(1986). Even if the sentencing court mentions the improper fact, a defendant must

show that the court relied on the particular improper fact when imposing the sentence. People v.

Garza,

(1984).

¶ 48 A trial court has broad discretionary powers in imposing a sentence, People v. Fern,

(1999), and its sentencing decision deserves great deference, People v. Perruquet,

(1977). See People v. Shaw,

(2004) (generally

trial courts in much better position than reviewing courts to determine appropriate sentence).

Unlike a reviewing court, the sentencing court has the opportunity to weigh factors such as the

defendant's credibility, demeanor, general moral character, mentality, social environment, habits,

and age. People v. Stacey,

(2000). For these reasons, the reviewing court

should avoid substituting its judgment for that of the sentencing court simply because the

reviewing court might have given different weight to the factors.

We will not substitute our

judgment for that of the trial court absent an abuse of discretion. People v. Rogers,

(2001).

¶ 49 Sentences within the statutory mandated guidelines are presumed proper and will not be

overturned or reduced unless: (i) affirmatively shown to greatly depart from the spirit and

purpose of the law, or (ii) are manifestly contrary to constitutional guidelines. People v. Boclair,

(1992). A sentence promotes the spirit and purpose of the law when it

reflects the seriousness of the offense and gives adequate consideration to defendant's

rehabilitative potential.

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¶ 50 Valadovinos’s sentence of 43 years, though lengthy, is within the statutorily mandated

guidelines for attempted first degree murder while personally discharging a firearm.

¶ 51 Valadovinos did not raise the issue of improper aggravating evidence in his

postsentencing motion, and, the State argues, he should not be permitted it raise it now. In his

posttrial motion, Valadovinos claimed, “(i) the defendant is twenty-three years of age and is a

life long resident of Illinois; (ii) that the sentence imposed is excessive and is not fair in this

case.” No mention is made that the trial court considered improper aggravating evidence or gave

improper weight to mitigating evidence when imposing the sentence. Although Valadovinos’s

motion did not explicitly raise the issue of improper aggravating evidence, the motion did touch

on the issue of an unfair and excessive sentence, and therefore we find that the issue has been

preserved for appeal. See People v. Heider,

(2008).

¶ 52 Valadovinos argues that the trial court erred by failing to give proper weight to the

mitigating evidence, particularly, his age, lack of prior criminal convictions, and the fact no one

was harmed during the shooting. He asks us to look to the judge’s comments in which he says

he considered the presentence investigation and all the testimony offered at trial, took to heart

many of the arguments the defense counsel put forward, and remembered the “level of sort of

violence that the offense represents.”

¶ 53 We presume where mitigation evidence was presented, the sentencing court considered it.

See People v. Burnette,

(2001); People v. Trimble,

(1991). Valadovinos made no affirmative showing that the trial court failed to give

proper weight to the mitigating evidence offered at the sentencing hearing. We find nothing to

indicate that the sentencing court abused its discretion in weighing the mitigating evidence.

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¶ 54 Next, Valadovinos argues that the trial court abused its discretion when it stated, “I

remember the level of sort of violence,” which, according to Valadovinos, shows the judge

impermissibly considered facts in aggravation that were inherent to the offense as charged.

¶ 55 In devising an appropriate sentence, the court considers the particular circumstances and

facts that speak to the seriousness of the offense. People v. Perruquet,

(1977). Although elements inherent in the offense are off-limits as aggravating factors, the

sentencing judge cannot be expected to ignore factors relevant to a sentencing decision. People

v. Saldivar,

(1986).

¶ 56 Valadovinos fired five shots toward Ernesto, which led to a car chase and foot pursuit

with police. Valadovinos’s actions placed a number of people in danger, including the people in

the street, the drivers and pedestrians in proximity to the car chase, and the arresting officers.

The context satisfies us that by “level of violence,” the judge refers to the gravity of

Valadovinos’s actions, and not the violence inherent in the offense. Thus, the sentencing court

considered only permissible factors.

¶ 57 Corrections to the Mittimus

¶ 58 The trial court awarded defendant 517 days of presentence credit; however, the record

indicates that defendant spent 692 days in pretrial custody. A defendant is entitled to credit for

any part of any day spent in custody. 730 ILCS 5/5-4.5-100 (West 2012). The State does not

object to correcting the defendant's mittimus to reflect a presentence credit of 692 days. We

order the clerk of the circuit court to correct defendant's mittimus to 692 days of credit. Ill. S. Ct.

R. 615(b)(1).

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¶ 59 CONCLUSION

¶ 60 We affirm defendant's conviction and sentences and correct the mittimus to reflect a

presentence credit of 692 days.

¶ 61 Affirmed.

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