People v. Alvarado ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Alvarado, 2011 IL App (1st) 082957Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ALEJANDRO ALVARADO, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-08-2957
Filed December 30, 2011
Held On appeal from defendant’s convictions for aggravated unlawful use of
(Note: This syllabus a weapon without a FOID card and possession of a handgun in the street
constitutes no part of while under 21 years of age, the first conviction was vacated under the
the opinion of the court one-act, one-crime rule, but the second conviction was upheld, despite
but has been prepared defendant’s contentions that his counsel was ineffective in eliciting
by the Reporter of testimony that opened the door for the State’s introduction of testimony
Decisions for the related to gang activity and that the statute was unconstitutional, since
convenience of the defense counsel’s questions were based on a reasonable trial strategy of
reader.)
establishing that the police falsely attempted to connect defendant to a
person involved in gang activity, and the prohibition against persons
under 21 years of age possessing handguns outside their homes and in
public regulates conduct that is not at the core of the second amendment
right, it warrants at most intermediate scrutiny, it serves an important and
substantial governmental interest, and it does not violate the equal
protection clause.
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-398; the Hon.
Review Mary Margaret Brosnahan, Judge, presiding.
Judgment Affirmed in part and vacated in part.
Counsel on Michael J. Pelletier, Alan D. Goldberg, Ahmed A. Kosoko, and Douglas
Appeal R. Hoff, all of State Appellate Defender’s Office, of Chicago, for
appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Miles
J. Keleher, and Conor Fleming, Assistant State’s Attorneys, of counsel),
for the People.
Panel JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Presiding Justice Hoffman and Justice Hall concurred in the judgment
and opinion.
OPINION
¶1 Following a jury trial, defendant Alejandro Alvarado was convicted of aggravated
unlawful use of a weapon (AUUW) and sentenced to two years of probation.
¶2 On appeal, he contends that: (1) his multiple convictions for AUUW violate the one-act,
one-crime rule; (2) he received ineffective assistance from trial counsel, who elicited
testimony concerning street gangs; (3) and his convictions under the AUUW statute should
be vacated because the relevant provisions of the statute violate the constitutional guarantees
of the right to keep and bear arms and equal protection.
¶3 For the reasons that follow, we hold that: (1) one of defendant’s two convictions for
AUUW must be vacated under the one-act, one-crime rule; (2) defendant was not denied
effective assistance of counsel where counsel’s questions of witnesses were consistent with
the defense strategy to discredit the police officers’ testimony and disassociate defendant
from the co-arrestee who flashed gang signs at the scene; and (3) defendant’s conviction for
possession of a firearm in the street when he was under 21 years of age is affirmed because
the relevant provisions of the AUUW statute do not violate the constitutional guarantees of
the right to keep and bear arms and equal protection.
¶4 Accordingly, we vacate one conviction for AUUW and affirm the judgment of the circuit
court in all other respects.
¶5 I. BACKGROUND
¶6 On the afternoon of December 12, 2006, defendant was arrested after Chicago police
officers, who were conducting surveillance from inside an unmarked squad car, allegedly
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saw defendant on the street with a gun in his hand. Two police officers approached
defendant, chased him into a residence, and recovered the Smith and Wesson .38-special
bluesteel revolver he was carrying.
¶7 Prior to trial, defendant moved the court to quash his arrest and suppress evidence. He
argued the court should suppress the handgun recovered inside his home and his postarrest
statement because his home was illegally searched and he was illegally arrested. After a
hearing, the trial court denied defendant’s motion.
¶8 Defendant was tried before a jury on charges that he: (count I) knowingly carried on or
about his person a handgun when he was not on his own land, or in his own abode or fixed
place of business, and had not been issued a currently valid firearm owner’s identification
(FOID) card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2006)); and (count II) knowingly
carried on or about his person a handgun when he was not on his own land or in his own
abode or fixed place of business and was under 21 years of age and in possession of a
handgun (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2006)).
¶9 At trial, Chicago police officer Angel Cahue testified for the State that he was conducting
surveillance on the 3000 block of South Homan Avenue. He sat in the backseat of a parked,
covert vehicle and relayed information to other surrounding officers via radio. Sergeant Jason
Janopolous and Officer Sonia Aponte were also present in that car. Officer Medina was
sitting in an unmarked car parked in an alley about one block north of Officer Cahue’s
location.
¶ 10 Officer Cahue saw a Jeep driven by Raudel Perez pull into a driveway on the east side
of Homan Avenue. Defendant, who was in the passenger seat, exited the Jeep and had a brief
conversation with Perez. Defendant held a handgun in his right hand. Defendant turned and
began to cross the street, tucking the gun into the right side of his waistband so that the gun
handle remained visible. Officer Cahue radioed for Officer Medina to approach. Officer
Medina drove to the rear of 3040 South Homan Avenue, and ran from the alley, through the
backyard and gangway to the front of the residence. Defendant was in the street in front of
3040 South Homan Avenue, and Officer Cahue had exited his car. The revolver was in
defendant’s waistband and his hand was on the handle of the gun.
¶ 11 Officer Cahue testified that the officers announced their office and told defendant to stop.
Defendant looked at them and then ran into the gangway at 3040 South Homan Avenue.
Officer Medina chased defendant, followed by Officer Cahue. Defendant ran inside a
basement apartment, slamming the door in Officer Medina’s face. Officer Medina
immediately opened the unlocked door and followed defendant. When Officer Cahue caught
up to them inside the apartment, Officer Medina had defendant lying facedown on the floor
in protective custody. While Officer Cahue stayed with defendant, Officer Medina recovered
the revolver from the bathroom.
¶ 12 Officer Cahue testified that when the officers entered the basement apartment, it was
filthy and in complete disarray. Garbage was spilling over from garbage cans, dishes were
piled up in the kitchen sink, and clothes were all over the floor. The officers did not search
or ransack defendant’s apartment. Defendant was advised of his rights and taken to the police
station. Defendant then voluntarily told Officers Cahue and Medina that a male pulled a gun
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on defendant and shot at him the previous day. Defendant also said that he would not call the
police because he was his own protection. Defendant’s statement was not videotaped or tape-
recorded because this case did not involve a homicide. Officer Cahue took steps to verify
whether the prior shooting incident had occurred.
¶ 13 Officer Cahue testified that Raudel Perez was also arrested at the scene for reckless
conduct where he attempted to create a diversion by flashing gang signs and yelling gang
slogans when the police were chasing defendant. Furthermore, no females were around the
area when defendant was out on the street with the gun. In addition, defendant was 20 years
old at the time of the arrest and did not have a FOID card.
¶ 14 Officer Medina testified consistently with Officer Cahue. Officer Medina added that
when defendant ran into the basement and the door slammed closed, Officer Medina
immediately opened the unlocked door and saw defendant in the vestibule area still in
possession of the revolver. Defendant ran into a bathroom that was less than 10 feet from the
vestibule, pulled the revolver from his waistband, and tossed it into the top of an uncovered,
water-filled toilet tank. Defendant then moved away from the toilet, got on the ground, and
cooperated with the officers’ orders. Furthermore, at the police station, defendant told the
officers that a rival gang member pulled a gun on him the day before. Officer Medina did not
ask defendant when or where the incident happened or the name of anyone defendant may
have thought was the offender. Officer Medina explained that he did not make a tape or
video recording of defendant’s postarrest statement because the matter was treated as a gun
case, not a homicide case.
¶ 15 Sergeant Janopolous testified that he supervised the surveillance in this matter and was
the driver in the covert vehicle with Officer Cahue. Sergeant Janopolous saw the Jeep driven
by Perez pull into the driveway. Defendant, who was the passenger, then exited the Jeep and
started to walk across the street. Perez exited the Jeep soon thereafter. When Officers Medina
and Cahue chased defendant, Perez started flashing Latin King gang signs and yelling gang
slogans and began to cross the street. At that point, Sergeant Janopolous and Officer Aponte
exited their car and, in order to provide additional protection for the officers that chased
defendant, arrested Perez for reckless conduct. Sergeant Janopolous testified consistently
with Officers Cahue and Medina concerning the condition of the basement apartment.
Sergeant Janopolous testified that the officers did not break the basement door or search the
basement apartment. The officers were only inside the apartment for a couple of minutes
before they all returned to the police station.
¶ 16 Amber Huerta testified for the defense. She lived across the street from defendant and
knew him as a family friend. She was home at the time of the incident and looked out her
window because a green truck playing loud music drove into the driveway next to her home.
Two men were in the truck, but defendant was not with them. Furthermore, defendant was
not around on the street. Two Hispanic male police officers searched the truck and its two
occupants. Then more officers came and they ran to the house next door to defendant’s home
and spoke with someone at that residence. Next, the officers went to the second floor of
defendant’s home, but no one answered the door. The officers then went through the
gangway, and Huerta lost sight of them. About 10 minutes later, the officers came outside
with defendant, took him to the two men from the truck, and searched them. Huerta knew
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that defendant was arrested for having a gun, realized her information was important, but
never told the police that someone other than defendant was the truck passenger. Moreover,
prior to trial, Huerta refused to give a statement to the State’s investigator in this case.
¶ 17 Defendant testified that he had been at home all day before the police burst into his
apartment. Specifically, he was alone when he heard two loud knocks on the door. Then, the
police knocked the door off its hinges and entered. The first officer, a big white man, came
in with his gun drawn, and two others came in and began searching the apartment. While
defendant lay facedown on the floor for about 15 minutes, the officers pulled cabinets down,
flipped and tore couches, and went through drawers. The police took him to the washroom,
where they had removed the toilet tank cover and claimed to have found a gun. Defendant
testified that he never put a gun in the toilet tank and did not know how the toilet tank cover
disappeared. Photographs of defendant’s home in disarray were introduced into evidence.
Defendant, however, acknowledged that he did not present any photographs from family
functions, etc., that would have shown the condition of his home prior to the date of his
arrest.
¶ 18 Defendant did not remember being told his Miranda rights and never made a statement
that someone shot at him the day before his arrest. Defendant acknowledged that his
neighborhood was in Latin King territory but testified that he was not in a street gang, had
never been in one, and did not have any gang tattoos. Although defendant had seen Perez
around for probably one month, defendant did not know Perez was a Latin King and was not
in Perez’s Jeep on the date of the incident.
¶ 19 The State recalled Officer Cahue as a rebuttal witness. Officer Cahue testified that after
the arrest he asked defendant if he was in a gang, and defendant said he was a Latin King.
Officer Cahue documented that statement in his offense report.
¶ 20 The jury found defendant guilty of both counts of AUUW where he did not possess a
valid FOID card (count I), and where he was under 21 years of age at the time of the offense
(count II). He was then sentenced to two years of felony probation. Defendant appealed.
¶ 21 II. ANALYSIS
¶ 22 A. One-Act, One-Crime Rule
¶ 23 When a defendant is convicted of two offenses based upon the same, single physical act,
the court must vacate the less-serious offense. People v. Johnson, 387 Ill. App. 3d 780, 793
(2009). The State concedes that one of defendant’s two convictions for AUUW must be
vacated under the one-act, one crime rule because multiple convictions are improper if they
arise out of the same physical act. People v. Crespo, 203 Ill. 2d 335, 340-41 (2001). Both of
defendant’s AUUW convictions are based on the same, single act of possession of the same
revolver. Moreover, both offenses are Class 4 felonies. See 720 ILCS 5/24-1.6(d) (West
2006). Because defendant’s constitutional challenges to the AUUW statute are not
significantly impacted by which offense is vacated, we will address his constitutional
challenges under the more general charge of (count II) possession of a handgun in the street
when he was under 21 years of age. Consequently, we vacate defendant’s AUUW conviction
under count I, which was based on his possession of a handgun in the street without a valid
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FOID card.
¶ 24 B. Ineffective Assistance of Trial Counsel
¶ 25 Defendant contends that trial counsel provided ineffective assistance by eliciting
irrelevant and inflammatory testimony which suggested that the offense was gang-related.
Specifically, defendant complains his trial counsel should not have elicited on cross-
examination testimony (1) from Officer Cahue that Perez, defendant’s co-arrestee, was
arrested for flashing gang signs and shouting gang slogans; and (2) from Officer Medina that
defendant told the officers a rival gang member shot at defendant the day before his arrest.
According to defendant, that cross-examination opened the door for the State to present
evidence that the neighborhood was considered Latin King territory and defendant told the
police after his arrest that he was a member of that street gang. We do not agree.
¶ 26 To obtain relief, defendant must show not only that his lawyer’s performance fell below
an objective standard of reasonableness, but also that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687-89 (1984); People v. Albanese, 104
Ill. 2d 504, 525-27 (1984). A reviewing court must consider the totality of the evidence
before the fact finder in determining whether a defendant has established his attorney’s
unreasonable errors and the reasonable probability of a different result. Strickland, 466 U.S.
at 695. The prejudice prong of this Strickland test may be satisfied if defendant can show that
counsel’s deficient performance rendered the result of the trial unreliable or the proceeding
fundamentally unfair. People v. Evans, 209 Ill. 2d 194, 220 (2004). The failure to satisfy
either the performance or the prejudice prong of the Strickland test will preclude a finding
of ineffective assistance of counsel. People v. Johnson, 368 Ill. App. 3d 1146, 1161 (2006).
¶ 27 Before we address defendant’s ineffective assistance of counsel claim, we must clarify
the trial court’s ruling on the parties’ motions in limine. Defendant asserts, without citation
to the record, that prior to the start of the trial, “the trial court ruled that the case was not
gang-related and that no gang evidence would be introduced.” Our review of the record,
however, establishes that the trial court made no such ruling. The trial court’s ruling was
actually much narrower. It addressed whether the State could present evidence that the police
were at the scene conducting surveillance as a result of receiving information from an
unknown citizen that someone would be carrying a gun in order to retaliate for a prior
shooting incident involving street gangs. The trial court did not preclude any mention of
street gang activity but, rather, precluded the State from eliciting the hearsay information
obtained from the unknown citizen, who was not available for cross-examination.
¶ 28 According to the record, before jury selection on July 14, 2008, the trial court addressed
the parties’ motions in limine. After ruling on several of the State’s oral motions in limine,
the State sought guidance regarding the extent to which the officers could testify about the
reason they had set up surveillance at 30th Street and Homan Avenue. The State explained
that the police had defendant’s name and photo because an unknown citizen told the police
that there was going to be a gang retaliation and defendant was going to be the one with the
gun. Furthermore, an offense case report indicated that on a previous day defendant was shot
at by unknown rival gang members. The State sought leave to present the facts that the
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officers were familiar with that block based on gang activity and had information that a gang
retaliation was going to take place.
¶ 29 The defense objected, arguing defendant would not be able to cross-examine the source
of that information. The defense explained that a telephone call to the police was apparently
the source of the information, but the person connected to the relevant telephone number
denied making any such call and denied any knowledge of the matter.
¶ 30 Due to concerns involving hearsay and prejudice resulting from the denial of the right to
confront witnesses, the trial court precluded the State from mentioning any information
supplied by the unknown citizen. The trial court limited the State on direct examination to
presenting testimony that the police were at the location “on surveillance pursuant to a
continuing investigation.”
¶ 31 The trial court then addressed the admissibility of defendant’s postarrest statement that
a male pulled a gun on him on a previous day, defendant was not going to call the police, and
defendant was his own protection. Defense counsel asked the court to preclude any use of
defendant’s postarrest statement because it was not written or recorded, defendant denied
being shot at and denied making the postarrest statement, and the statement was inconsistent
with the information supposedly supplied by the unknown citizen.
¶ 32 The trial court ruled that defendant’s postarrest statement was relevant and admissible,
the defense’s cross-examination could challenge whether defendant ever made the postarrest
statement, and the jury would decide what weight to give that evidence.
¶ 33 Defense counsel argued that he felt “boxed-in” by the trial court’s ruling and the State
should not be allowed to use defendant’s entire postarrest statement. Defense counsel agreed
with the court’s ruling to preclude any reference to the information received from the
unknown citizen. However, if defendant’s postarrest statement was admissible, defense
counsel was concerned that he might have to refer to some of the precluded information.
Specifically, in order to challenge the notion that defendant made the alleged postarrest
statement, counsel might refer to the precluded information in order to show that the facts
supposedly supplied by the unknown citizen were not even consistent with the facts in the
postarrest statement the police attributed to defendant.
¶ 34 The State expressed concern that if the police officers were cross-examined about what
information they had prior to going to the scene, then some of the precluded information
might come out.
¶ 35 The trial court did not alter its ruling, but acknowledged that defendant’s cross-
examination of the officers about what they knew prior to their surveillance might open some
doors to gang activity or shootings that happened earlier. If that happened, the trial court
would address the matter in a sidebar before the State’s redirect or cross-examination.
¶ 36 Then the trial court asked if there were any further motions in limine to address. Defense
counsel said he had “a formal one on the gang issue but [the court] already ruled on that [and
counsel would file it].” Defense counsel asked “that the State have a clean folder for the jury
so that nothing–gang affiliation or pending charges not be open and visible for that.” The trial
court asked the State to keep any information or exhibits not yet admitted into evidence away
from the jury’s sight line. Thereafter, jury selection commenced.
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¶ 37 The record contains defendant’s motion in limine, file stamped July 14, 2008, to prohibit
the State from introducing evidence of any gang involvement by defendant. The motion
alleged that defendant had no gang tattoos, markings or scars, made no motions consistent
with gang involvement while the police observed him, and was not in the company of any
other individuals that would indicate gang involvement. The motion also alleged that, aside
from the arrest information and general offense report, no reports supported the officers’
contention that this case was gang-related. The motion argued that the introduction of gang
evidence would be more prejudicial than probative in this particular case. There is no
indication in the record that a ruling was made on this motion or that the issue raised therein
was presented to the trial court.
¶ 38 During the cross-examination of Officer Cahue, defense counsel elicited testimony that
at the time of defendant’s arrest, the police also arrested Perez for reckless conduct where
“he was outside acting up, flashing gang signs and gang slogans, attempting to create a
diversion.” Later, when defense counsel cross-examined Officer Medina about his failure to
follow through on defendant’s alleged statement that someone had fired a gun at him, the
following exchange occurred:
“Q. So here you have an individual who had just told you that somebody may have
shot at him, correct?
A. Right.
Q. Did you ask him who?
A. Yes.
Q. Who did you get?
MS. GOLDFISH [Assistant State’s Attorney]: Objection.
THE COURT: Overruled. You may tell us.
A. He said it was a rival gang.”
Defense counsel continued to question Officer Medina regarding whether defendant
mentioned the time and location of the prior shooting incident and any names of the people
involved. Counsel then questioned Officer Medina regarding his failure to make a tape or
video recording of defendant’s alleged statement or have him write or sign it.
¶ 39 Thereafter, defendant testified on direct that he was never in a gang, did not have any
gang tattoos, and never made a postarrest statement to Officer Cahue or Medina. On cross-
examination, he testified that he had lived on his block for about 15 years and knew that it
was Latin King territory. He was not a Latin King and did not know whether Perez was a
Latin King.
¶ 40 After the defense rested, the State sought leave to have rebuttal witness Officer Cahue
testify that, after defendant’s arrest, Officer Cahue asked him whether he was affiliated with
a gang, defendant said he was a member of the Latin Kings, and Officer Cahue documented
that statement in his general case report.
¶ 41 Defense counsel responded:
“[W]e have been hearing gangs about this over our objection the entire time from every
state witness that has come up there. So I had to rebut their violation of that particular
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issue by asking [defendant] if he was in a gang or not.”
¶ 42 The trial court, however, corrected defense counsel, noting that the State did not
introduce any information regarding street gangs during the direct examinations of the police
officers. The trial court stated:
“So I just resent the implication that you make in your argument that there [have] been
numerous violations of a motion in limine and people have been trotting out gangs from
start to finish. That was not the case. The record does not show that.”
The trial court clarified that Officer Cahue’s rebuttal testimony was not allowed based on the
defense opening any door to evidence about gang membership as a result of the defense’s
cross-examination of the police officers. Instead, the rebuttal testimony was allowed because
it was relevant on the issue of defendant’s credibility where he testified on direct
examination that he was never a member of a gang.
¶ 43 Based upon the above summary of the course of the trial, we now address defendant’s
ineffective assistance of counsel claim. Specifically, defendant challenges counsel’s cross-
examination that elicited (1) Officer Cahue’s testimony that Perez was arrested for flashing
gang signs and (2) Officer Medina’s testimony that defendant told the officers a rival gang
previously shot at him. According to defendant, there was no valid tactical reason to have so
cross-examined Officers Cahue and Medina under the circumstances, so counsel’s
challenged actions cannot be attributed to trial strategy.
¶ 44 Defendant fails to meet his burden under the first prong of Strickland to show that
defense counsel’s conduct at trial fell below an objective standard of reasonableness. In
reviewing an attorney’s actions, we show deference to the attorney’s decisions, and the
defendant must overcome the presumption that counsel’s challenged action was trial strategy.
Strickland, 466 U.S. at 689. There is a strong presumption that an attorney’s actions fall
within the wide range of choices that could be considered adequate counsel. Id. Matters of
trial strategy include whether to offer certain evidence or call particular witnesses, whether
and how to conduct cross-examination, and what motions to make. People v. Anderson, 266
Ill. App. 3d 947, 956 (1994).
¶ 45 The defense strategy entailed convincing the jury that defendant was not on the street at
the time of the alleged incident and the police unlawfully burst into his apartment, detained
him in his living room while they conducted an illegal search, and supposedly recovered a
gun in the bathroom. To accomplish this strategy, the defense attempted to convince the jury
that the police, in order to justify their warrantless search, lied about conducting the
undercover surveillance, falsely connected defendant to someone who was involved in gang
activity, fabricated defendant’s postarrest statement, and invented the incident about someone
pulling a gun on defendant in order to manufacture a motive for defendant to have the gun.
¶ 46 Consistent with this strategy, counsel elicited Officer Cahue’s testimony that it was
actually the co-arrestee, Perez, who was flashing gang signs and yelling gang slogans at the
scene. This line of questioning hardly opened the door to testimony about gang activity
where the defense knew that Sergeant Janopolous also would testify during the State’s case-
in-chief and would likely discuss, inter alia, the behavior by Perez that resulted in his arrest.
Sergeant Janopolous testified after Officer Cahue, and defendant cites no authority to support
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any argument that Sergeant Janopolous’s testimony regarding Perez’s conduct at the scene
was not admissible. Accordingly, the defense pursued the strategy of disassociating
defendant from Perez by presenting the testimony of eyewitness Huerta and defendant.
Huerta knew defendant as a family friend for several years and testified that he was not even
on the street, let alone in Perez’s Jeep. Defendant, who had lived in that neighborhood for
several years, insisted that he had never been in a street gang and did not have any gang
tattoos. Any contrary testimony by the police that defendant was involved in gang activity
was, according to the defense, just another lie to invent a motive and justify the warrantless
search and arrest of defendant.
¶ 47 Defense counsel’s cross-examination of Officer Medina was also consistent with the
defense’s strategy to show the jury that the police invented both the prior shooting incident
and defendant’s postarrest statement in order to manufacture a motive for defendant to have
a gun on the street on the day of his arrest. Specifically, counsel challenged as irrational the
notion that an arrested person would tell the police that he was carrying a gun because
someone had shot at him a day ago and the police would respond as casually as Officers
Cahue and Medina seemed to have acted in this case. Based upon the trial court’s ruling on
the motion in limine, the State could not present the hearsay evidence about the unknown
citizen’s report to the police that defendant was going to be part of a gang retaliation. As a
result, counsel was able to attack Officer Medina for failing to question defendant and
uncover the who, what, when and where of the prior shooting incident, and Officer Medina
could not respond that the police, before they conducted the undercover surveillance that
resulted in defendant’s arrest, had already received a tip that defendant would be involved
in a gang retaliation as a result of the prior shooting incident.
¶ 48 Furthermore, Officer Medina’s testimony that defendant said a rival gang shot at him did
not open the door to irrelevant and inflammatory testimony about street gangs. As the trial
court clarified, the State’s leave to present Officer Cahue’s rebuttal testimony–that defendant
said he was a Latin King–was not based upon any door being opened by defense counsel’s
cross-examination of the police officers. Rather, the rebuttal testimony was admissible solely
because it was relevant to the issue of defendant’s credibility where he testified on direct
examination that he was never a member of a street gang.
¶ 49 Defense counsel’s challenged actions were reasonable and consistent with the strategy
to discredit the testimony of the State’s witnesses that the officers observed defendant in the
street carrying the gun and defendant made an incriminating postarrest statement. Even
assuming, arguendo, that counsel’s strategy was not perfect, “[m]istakes in strategy or tactics
do not, alone, amount to ineffective assistance of counsel, nor does the fact that another
attorney might have handled things differently; in fact, counsel’s strategic choices are
‘virtually unchallengeable.’ ” People v. Ward, 371 Ill. App. 3d 382, 434 (2007) (citing
People v. Palmer, 162 Ill. 2d 465, 479 (1994)).
¶ 50 The record establishes that counsel provided effective and competent representation by
challenging prior to trial the warrantless search of defendant’s home, his arrest and the
admissibility of his postarrest statement. Counsel also delayed the trial until the defense had
obtained all relevant information concerning the unknown informant and Perez’s arrest and
investigated those matters. Furthermore, the defense successfully precluded, on hearsay
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grounds, the evidence concerning the police officers’ course of conduct and reason for
conducting the surveillance. In addition, the defense thoroughly cross-examined the State’s
witnesses, raised numerous objections to the State’s evidence, moved for a directed verdict
on the sufficiency of the FOID card evidence, and presented witnesses and exhibits on
defendant’s behalf. See People v. Shatner, 174 Ill. 2d 133, 147-48 (1996) (defense counsel
was not ineffective where he offered rigorous cross-examinations and witnesses on the
defendant’s behalf). Consequently, defendant fails to show that counsel’s performance fell
below an objective standard of reasonableness.
¶ 51 Defendant also fails to meet his burden under the second prong of Strickland to show a
reasonable probability that, absent any errors by counsel, the jury would have had a
reasonable doubt that defendant had a handgun on the street on the date in question. The
complained-of testimony concerning street gangs was not overly prejudicial where Officers
Cahue and Medina testified clearly, consistently and credibly that they saw defendant on
South Homan Avenue with a revolver in his hand and waistband. In contrast, defense witness
Huerta and defendant gave vague or inconsistent physical descriptions of the officers
involved in defendant’s arrest. Furthermore, defendant did not present any photographic
evidence to counter the officers’ testimony that his home was in complete disarray before the
officers ever entered it. Defendant also could not explain how his toilet tank cover
mysteriously disappeared during the alleged illegal search and randsacking of his home.
¶ 52 The fact that defense counsel’s cross-examination of Officers Cahue and Medina elicited
very brief references to street gangs neither opened the door to a flood of gang evidence nor
raised a reasonable probability that the challenged testimony so colored the jury as to force
a conviction regardless of the evidence in this case. Defendant has failed to meet his burden
under Strickland.
¶ 53 C. Constitutionality of the AUUW Statute
¶ 54 As discussed above, defendant is subject to only one AUUW conviction pursuant to the
one-act, one-crime rule. Accordingly, we will address his constitutional challenge based on
his conviction that he knowingly carried on or about his person a handgun when he was not
on his own land or in his own abode or fixed place of business and was under 21 years of age
and in possession of a handgun, in violation of section 24-1.6(a)(1), (a)(3)(I) of the Criminal
Code of 1961 (Criminal Code) (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2006)). Whether
a statute is constitutional is a question of law to be reviewed de novo. People v. Sharpe, 216
Ill. 2d 481, 487 (2005).
¶ 55 1. Right to Keep and Bear Arms
¶ 56 The second amendment provides that a “well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
U.S. Const., amend. II. In District of Columbia v. Heller, 554 U.S. 570, 628-30 (2008), a
majority of the Supreme Court concluded that a total ban on the possession of operable
handguns in the home, “where the need for defense of self, family, and property is most
acute,” made it “impossible for citizens to use them for the core lawful purpose of self-
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defense.” Such a ban could not withstand any level of heightened scrutiny and, thus, violated
the second amendment. Id. at 628-29.
¶ 57 Initially, defendant contends the act of carrying a handgun is conduct that enjoys the core
protection of the second amendment and, thus, may not be criminalized. According to
defendant, the AUUW statute requires no evidence of an unlawful or violent purpose and
punishes the mere possession and carrying of a firearm. This court has already addressed and
rejected similar arguments in People v. Aguilar, 408 Ill. App. 3d 136 (2011), appeal allowed,
No. 112116 (Ill. May 25, 2011), and People v. Mimes, 2011 IL App (1st) 082747, pet. for
leave to appeal filed, No. 112728 (Ill. July 25, 2011). In upholding a law-abiding citizen’s
right to possess an operable handgun “in defense of hearth and home,” the Supreme Court
stated that the second amendment’s guarantee of an individual right to possess and carry
weapons in case of confrontation, like the first amendment’s right of free speech, is not
unlimited. Heller, 554 U.S. at 592, 595, 635. The Supreme Court did “not read the Second
Amendment to protect the right of citizens to carry arms for any sort of confrontation.”
(Emphasis in original.) Id. at 595. The right to keep and bear arms is not “a right to keep and
carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at
626.
¶ 58 In Aguilar and Mimes, this court adopted intermediate scrutiny as the appropriate
standard to review the defendants’ second amendment challenges to their AUUW
convictions, which were based on their carrying of loaded firearms when they were not on
their own land, or in their home or fixed place of business. Aguilar, 408 Ill. App. 3d at 145-
46; Mimes, 2011 IL App (1st) 082747, ¶ 72. This court held that the statute’s purpose to
promote and ensure the safety of both the general public and police officers by limiting the
accessibility of loaded firearms in public places and on public streets constituted a substantial
or important interest and that the fit between that objective and the statute was reasonable.
See Aguilar, 408 Ill. App. 3d at 146; Mimes, 2011 IL App (1st) 082747, ¶ 76.
¶ 59 Here, defendant also argues that his AUUW conviction should be vacated because the
relevant provision of the AUUW statute criminalizes the carrying of handguns by 18-, 19-,
and 20-year-old adults in public for the lawful purpose of self-defense and, thus, facially
violates the federal constitutional guarantee of the right to bear arms. The challenged
provision of the AUUW statute provided, in pertinent part, as follows:
“(a) A person commits the offense of [AUUW] when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or
about his or her person except when on his or her land or in his or her abode or fixed
place of business any pistol, revolver, stun gun or taser or other firearm; ***
***; and
(3) One of the following factors is present:
***
(I) the person possessing the weapon was under 21 years of age and in
possession of a handgun as defined in Section 24-3, unless the person under 21
is engaged in lawful activities under the Wildlife Code or described in subsection
24-2(b)(1), (b)(3), or 24-2(f).” 720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2006).
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Defendant argues 18-to-20-year-old adults have reached the age of majority and are full
rights holders. Defendant states that they are not deemed dependent by society, their
judgment is not placed in question, and they are eligible for military service. Defendant
concludes that there is nothing about 18-to-20-year-old adults that makes them unusually
dangerous so as to justify a “total ban” on their handgun possession. Defendant contends that
even though the second amendment allows reasonable regulation of the individual right to
keep and bear arms, the challenged provision of the AUUW statute fails to satisfy any level
of heightened scrutiny.
¶ 60 To support his position, defendant cites portions of the Supreme Court’s discussion in
Heller concerning the historic right of younger adults to carry firearms. Specifically,
defendant states that the second amendment secures the militia by ensuring a populace
familiar with arms. See Heller, 554 U.S. at 599-601. Moreover, the Framers conceived of an
unorganized militia composed of able-bodied men who could be called in defense of their
country as the federally organized militia. See id. at 595-96. Furthermore, the first militia act
passed by Congress enrolled in the organized militia all able-bodied white male citizens who
were at least 18 years of age and under 45. See id. at 596. Defendant asserts that the Framers
did not exempt 18-to-20-year-old adults from the guarantees of the second amendment or
intend them to be kept unfamiliar with arms by being stripped of their second amendment
rights.
¶ 61 Defendant inaccurately characterizes section 24-1.6(a)(1), (a)(3)(I) of the Criminal Code
as a “total ban” on handgun possession by young adults. This provision is limited to the
carrying of a handgun when the person is not on his own land or in his abode or fixed place
of business. Furthermore, this provision contains exceptions and, thus, does not affect the
person under 21 years of age who is engaged in lawful activities under the Wildlife Code
(520 ILCS 5/1.1 et seq. (West 2006)), members or patrons of target shooting ranges (720
ILCS 5/24-2(b)(1), (f) (West 2006)), or licensed hunters (720 ILCS 5/24-2(b)(3) (West
2006)). Section 24-2 contains additional exemptions concerning an individual’s employment
or military service. 720 ILCS 5/24-2 (West 2006).
¶ 62 For the reasons that follow, we hold that the provision of the AUUW statute at issue here
does not violate the constitutional protection of the right to bear arms.
¶ 63 This court has used a two-part approach to second amendment claims. Wilson v. Cook
County, 407 Ill. App. 3d 759, 768 (2011), appeal allowed, No. 112026 (Ill. May 25, 2011)
(discussing several federal court cases that used a similar approach for second amendment
claims).
“First, the court considers whether the challenged law imposes a burden on conduct
falling within the scope of the second amendment’s guarantee. [Citation.] This historical
inquiry seeks to determine whether the conduct at issue was understood to be within the
scope of the right to bear arms when the second amendment was ratified. [Citation.] If
the challenged law does not burden protected conduct, then the law is valid, provided that
it satisfies the due process mandate of rationality in lawmaking. [Citations.] However,
if the challenged law burdens conduct that was within the scope of the right, then the
court applies an appropriate form of heightened means-end scrutiny. [Citation.] Because
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a rational basis review cannot be applied to conduct falling within the scope of the
second amendment’s protection, the government bears the burden of justifying the
constitutional validity of the law. [Citation.]” Mimes, 2011 IL App (1st) 082747, ¶ 66.
¶ 64 Defendant has met his initial burden to show that the challenged provision of the AUUW
statute burdens conduct falling within the scope of the second amendment’s protection. The
conduct at issue here–possession in public of a handgun by an 18-to-20-year-old adult who
may be a law-abiding citizen carrying the handgun for the purpose of self-defense–is not at
the core of the right to bear arms like the defense of hearth and home. Nevertheless, this
conduct is not completely beyond the scope of the second amendment’s protection. See
Heller, 554 U.S. at 592-95 (general discussion of the historical background of the second
amendment guarantee of the individual right to possess and carry weapons in case of
confrontation).
¶ 65 Because the challenged AUUW provision burdens conduct within the scope of the
second amendment guarantee, we evaluate the prohibition under the appropriate standard of
constitutional scrutiny. Defendant argues that strict scrutiny should govern because a
fundamental right is at issue. We disagree. This court previously ruled that second
amendment challenges, like first amendment challenges, can trigger more than one particular
standard of scrutiny. Mimes, 2011 IL App (1st) 082747, ¶ 71 (the first amendment right to
free speech is an enumerated fundamental right, yet it is subject to several standards of
scrutiny depending on the type of speech and level of prohibition at issue); see also United
States v. Marzzarella, 614 F.3d 85, 96-98 (3d Cir. 2010) (discussing the application of
intermediate scrutiny to content-neutral time, place and manner restrictions, or to regulations
on nonmisleading commercial speech).
¶ 66 Here, the challenged provision is not a total ban on conduct that is at the core of the
second amendment right, such as the total ban in Heller on having an operable handgun in
one’s home for the lawful purpose of self-defense. The provision, which involves place, type
of firearm, and age limits on the right to self-defense, limits the ability of individuals under
21 years of age to carry handguns outside their homes and in public. However, various
exceptions and exemptions apply to protect the rights of young adults to engage in lawful
activities like hunting and target shooting. The regulated conduct at issue here is not at the
core of the second amendment right. Consequently, intermediate scrutiny is the appropriate
level of heightened scrutiny to apply here based upon the type of protected conduct that is
burdened and the severity of the restriction that is challenged. See Mimes, 2011 IL App (1st)
082747, ¶ 74.
¶ 67 The intermediate scrutiny inquiry asks whether the challenged law served a significant,
substantial or important governmental interest, and, if so, whether the fit between the
challenged law and the asserted objective was reasonable, not perfect. Wilson, 407 Ill. App.
3d at 767. A reasonable fit “represents not necessarily the single best disposition but one
whose scope is ‘in proportion to the interest served.’ ” Board of Trustees of the State
University of New York v. Fox, 492 U.S. 469, 480 (1989) (quoting In re R.M.J., 455 U.S.
191, 203 (1982)).
¶ 68 First, we consider whether the statutory provision against a person under 21 carrying a
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handgun in public on the street serves a significant, substantial or important government
interest. In Mimes, this court discussed the important general interest addressed by the
AUUW statute, i.e., to protect the public and police enforcement officers from the inherent
dangers and threats to safety posed by any person carrying in public a loaded and
immediately accessible firearm on his person or in his vehicle. Mimes, 2011 IL App (1st)
082747, ¶ 76. In particular, “the statute intended to ‘prevent situations where no criminal
intent existed, but criminal conduct resulted despite the lack of intent, e.g., accidents with
loaded guns on public streets or the escalation of minor public altercations into gun battles
or *** the danger of a police officer stopping a car with a loaded weapon on the passenger
seat.’ ” Id. (quoting People v. Marin, 342 Ill. App. 3d 716, 727 (2003)). Even innocent
motivations could be transformed “into culpable conduct because of the accessibility of
weapons as an outlet for subsequently kindled aggression.” Marin, 342 Ill. App. 3d at 727.
¶ 69 Those substantial and important government interests remain relevant in this appeal.
Nevertheless, we recognize that the challenged statutory provision here restricts someone
under 21 from carrying a handgun in public, regardless of whether the handgun is loaded and
immediately accessible. Comments made during the legislative debates indicate that the
legislature recognized that it was treating adults under 21 years of age differently in order to
“recognize the activity of gang members or young kids in certain parts of the state that are
active in gangs” and address the concern that gang members should be one of the groups
targeted by this legislation. 91st Ill. Gen. Assem., House Proceedings, April 10, 2000, at 54-
55 (statements of Representative Cross).
¶ 70 We conclude from that discussion that the legislature sought to deter 18-to-20-year-old
adults from carrying handguns, which threaten both the public and police officers, because
the 18-to-20-year-old group was heavily at risk for illegal gang-related activity. Furthermore,
that age group was more likely to be directly interacting with and, thus, endangering
juveniles. We find that the challenged provision serves a substantial and important
government interest to reduce in this state the armed violence and illegal activity of street
gangs and others by preventing those under 21 years of age from carrying handguns in public,
except in certain limited circumstances.
¶ 71 We also find that the fit between the challenged AUUW provision and its substantial and
important goal is absolutely reasonable although arguably somewhat imperfect. Defendant’s
argument that the 18-to-20-year-old group is not unusually dangerous is not persuasive given
the statistics concerning the use of handguns among that group in matters involving illegal
street gang activity and other crimes. Moreover, the statute provides for exceptions and
exemptions to protect the rights of law-abiding 18-to-20-year-old adults to engage in hunting,
target shooting, etc.
¶ 72 As discussed above, the purpose of the challenged provision is to advance public and
police officer safety by eliminating the inherent threats posed by young adults carrying
handguns in public on the street. Because we find that the fit between the challenged
provision of the AUUW statute and the statute’s substantial and important goal is absolutely
reasonable, the challenged statutory provision does not violate the second amendment and
defendant’s AUUW conviction must stand.
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¶ 73 2. Equal Protection
¶ 74 Finally, defendant argues his AUUW conviction violates the equal protection clause of
the fourteenth amendment to the United States Constitution because the challenged statutory
provision that prohibits adults 18, 19 and 20 years old from possessing handguns
impermissibly burdens the fundamental right to bear arms. Defendant contends this
legislative classification is subject to strict scrutiny under the equal protection clause because
it impinges on the fundamental right to bear arms for self-defense.
¶ 75 Legislative enactments have a strong presumption of constitutionality, and we are
required to uphold the constitutionality of a statute whenever reasonably possible. People v.
Alcozer, 241 Ill. 2d 248, 259 (2011). The party challenging the constitutionality of the statute
has the burden to prove its invalidity. Id.¶ 76 The constitutional right to equal protection of the laws requires the government to treat
similarly situated persons in a similar manner. People v. Warren, 173 Ill. 2d 348, 361 (1996).
The guarantee of equal protection “does not preclude the State from enacting legislation that
draws distinctions between different categories of people, but it does prohibit the government
from according different treatment to persons who have been placed by a statute into
different classes on the basis of criteria wholly unrelated to the purpose of the legislation.”
Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 322 (1996).
¶ 77 To ensure that the State has not exercised its power to classify arbitrarily, courts analyze
legislation under equal protection by applying different levels of scrutiny depending on the
statutory classification involved. Id. at 323.
“It is the nature of the right affected that dictates the level of scrutiny we employ in
determining whether the statute meets constitutional requirements. [Citation.] If the
challenged statute implicates a fundamental right or discriminates based on a suspect
classification of race or national origin, the court subjects the statute to ‘strict scrutiny’
analysis and will uphold the statute only if it is narrowly tailored to serve a compelling
State interest. [Citations.] Under an equal protection analysis, suspect classifications are
based on race or national origin. [Citation.]
If the statute does not affect a fundamental constitutional right or involve a suspect
classification, the rational basis test applies, requiring the statute bear a rational
relationship to the purpose the legislature intended to achieve by enacting it. [Citation.]
Additionally, ‘[a] third tier of constitutional scrutiny lies between deferential rational
basis review and strict scrutiny, and is known as intermediate scrutiny,’ and has been
applied to review classifications based on gender, illegitimacy, and those classifications
that cause ‘certain content-neutral, incidental burdens to speech.’ [Citation.]” Alcozer,
241 Ill. 2d at 262-63.
¶ 78 Defendant acknowledges that courts have applied the rational basis standard for purposes
of an equal protection analysis of an age-based classification because courts have routinely
held that age is not a suspect class for purposes of equal protection analysis. See People v.
M.A., 124 Ill. 2d 135, 140 (1988). Defendant, however, argues that section 24-1.6(a)(1),
(a)(3)(I) of the Criminal Code impinges upon a fundamental right and is therefore subject to
strict scrutiny. Specifically, defendant asserts that the age classification in the challenged
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provision of the AUUW statute burdens the fundamental right to keep and bear arms for self-
defense.
¶ 79 Fundamental rights “lie at the heart of the relationship between the individual and a
republican form of nationally integrated government.” People ex rel. Tucker v. Kotsos, 68
Ill. 2d 88, 97 (1977). As discussed above, the challenged statutory provision does not burden
a fundamental right because it does not impinge on conduct at the core of the second
amendment right, like an individual’s possession of an operable handgun for the defense of
hearth and home. Defendant cites no case law showing that he has a fundamental right to
carry on or about his person a handgun when he is not on his own land or in his abode or
fixed place of business. As discussed above, we find that Heller does not establish that
defendant has such a right.
¶ 80 We reject, therefore, defendant’s argument that the challenged provision of the AUUW
statute is subject to strict scrutiny. Like the first amendment fundamental right to free speech,
which is subject to different standards of scrutiny depending on the type of speech involved
and the level of prohibition at issue, the second amendment right to bear arms is also subject
to different standards of scrutiny. Mimes, 2011 IL App (1st) 082747, ¶ 71. For the reasons
discussed above, the challenged provision warrants, at most, intermediate scrutiny, and we
have already concluded that it satisfies intermediate scrutiny. Section 24-1.6(a)(1), (a)(3)(I)
of the Criminal Code does not violate the equal protection clause, and defendant’s AUUW
conviction must stand.
¶ 81 III. CONCLUSION
¶ 82 Accordingly, we affirm one of defendant’s two AUUW convictions and the sentence
imposed on that conviction. We vacate his conviction for the second AUUW offense.
¶ 83 Affirmed in part and vacated in part.
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