People v. Hurtado , 2024 IL App (2d) 230517-U ( 2024 )

2024 IL App (2d) 230517-UNo. 2-23-0517
Order filed February 21, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 23-CF-2491
)
BRIAN HURTADO, ) Honorable
) John A. Barsanti,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Justices Hutchinson and Mullen concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in granting the State’s petition for pretrial
detention and imposing a no-contact order.
¶2 On November 16, 2023, the defendant, Brian Hurtado, was charged with four counts of
first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2022)), a class M felony, one count of
aggravated unlawful use of a weapon (id. § 24-1.6(a)(1)), a class 2 felony, and one count of
possession of a firearm by a street gang member (id. § 24-1.8(a)(1)), also a class 2 felony. The
circuit court of Kane County granted the State’s verified petition to deny the defendant’s pretrial
2024 IL App (2d) 230517-Urelease pursuant to section 110-6.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/110-6.1 (West 2022)). The defendant appeals. We affirm.
¶3 This appeal is brought pursuant to Public Act 101-652, § 10-255 (eff. Jan. 1, 2023),
commonly known as the Pretrial Fairness Act (Act). 1 See Pub. Act 102-1104, § 70 (eff. Jan. 1,
2023) (amending various provisions of the Act); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay
and setting effective date of Act as September 18, 2023). The Act abolished traditional monetary
bail in favor of pretrial release on personal recognizance or with conditions of release. 725 ILCS
5/110-1.5, 110-2(a) (West 2022).
¶4 In Illinois, all persons charged with an offense are eligible for pretrial release. Id. §§ 110-
2(a), 110-6.1(e). Pretrial release is governed by article 110 of the Code as amended by the Act.
Id. § 110-1 et seq. Under the Code, as amended, a defendant’s pretrial release may only be denied
in certain statutorily limited situations. Id. §§ 110-2(a), 110-6.1(e).
¶5 Upon filing a verified petition requesting denial of pretrial release, the State has the burden
to prove, by clear and convincing evidence, that: (1) the proof is evident or the presumption great
that the defendant has committed a qualifying offense (id. § 110-6.1(e)(1)); (2) the defendant’s
pretrial release would pose a real and present threat to the safety of any person or persons or the
community (id. § 110-6.1(e)(2)); and (3) no condition or combination of conditions can mitigate
the real and present threat to the safety of any person or the community or prevent the defendant’s
willful flight from prosecution (id. § 110-6.1(e)(3)).
1
This name is not official, as it does not appear in the Illinois Compiled Statutes or the
public act. Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1.
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2024 IL App (2d) 230517-U¶6 In his appeal, the defendant argues that the State did not show, by clear and convincing
evidence, that either of the latter two requirements was met. Thus, he argues, the trial court erred
in finding that the State had met its burden and in ordering him detained. “Evidence is clear and
convincing if it leaves no reasonable doubt in the mind of the trier of fact as to the truth of the
proposition in question.” Chaudhary v. Department of Human Services, 2023 IL 127712, ¶ 74.
¶7 We review the court’s decision to deny pretrial release under a bifurcated standard. People
v. Trottier, 2023 IL App (2d) 230317, ¶ 13. Specifically, we review under the manifest-weight-
of-the-evidence standard the court’s factual findings as to dangerousness, flight risk, and whether
conditions of release could mitigate those risks. Id. A finding is against the manifest weight of
the evidence only where it is unreasonable or not based on the evidence presented. Id. We review
for an abuse of discretion the trial court’s ultimate determination regarding pretrial release. Id.An abuse of discretion also occurs only when the trial court’s decision is unreasonable. Id.¶8 The defendant first argues that the State failed to meet its burden of proving by clear and
convincing evidence that he poses a real and present threat to the safety of any person or the
community. He argues that the fact that he had no criminal history or other record of violent acts
showed that he did not pose a threat to anyone, and in finding to the contrary, the trial court
improperly relied solely on the nature of the offense.
¶9 In making a determination of a defendant’s dangerousness, a trial court may consider,
among other things: (1) the nature and circumstances of any charged offense, including whether it
is a crime of violence or a sex crime, or involved a weapon; (2) the defendant’s characteristics and
history, including any criminal history indicative of violent, abusive, or assaultive behavior, and
any psychological history indicative of a violent, abusive, or assaultive nature, and the lack of any
such history; (3) the identity of the person believed to be at risk from the defendant and the nature
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2024 IL App (2d) 230517-Uof the threat; (4) statements by the defendant and the circumstances of such statements; (5) the age
and physical condition of the defendant; (6) the age and physical condition of any victim or
complaining witness; (7) the defendant’s access to any weapon; (8) whether the defendant was on
probation, parole, or the like at the time of the charged offense or any other arrest or offense; and
(9) any other factors that have a reasonable bearing on the defendant’s propensity for violent,
abusive, or assaultive behavior, or the lack of such behavior. Id. § 110-6.1(g).
¶ 10 In the present case, the evidence provided by the State included a police synopsis of the
incident that led to the defendant’s arrest. The synopsis stated that, during the early evening on
November 11, 2023, the defendant and his brother Carlos Hurtado, Jr., were out walking with their
friend Jaylin Clark. Clark later provided the following account to police. The three men walked
to an area near the railroad tracks in Elgin where there was a camp of homeless people, to “smoke”
and eat. The defendant was approached by the victim, Juan Ambriz, and they began to argue about
the defendant’s relationship with a woman who was the mother of Ambriz’s child. The argument
had begun to subside when another individual walked past them and commented to Ambriz,
“Didn’t you say you were going to merk him next time you saw him?” (According to the author
of the police synopsis, “merk” is slang meaning “murder.”) The argument between the defendant
and Ambriz then escalated. The defendant pulled a gun from his front waistband. Carlos did the
same. Ambriz then pulled something from his own waistband, but Clark did not recognize it as a
gun. The defendant shot Ambriz three times. Clark did not think Carlos shot his gun. The
defendant and his brother ran, and Clark and a woman who was friends with Ambriz, Alisha
Elizondo, called 911 and tried to administer first aid to Ambriz. Clark waited for the police to
arrive and led them to Ambriz. Clark identified photos of the defendant and Carlos, and stated
that he had seen the defendant shoot Ambriz. The next day, Clark was re-interviewed and told the
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2024 IL App (2d) 230517-Upolice that earlier that morning he had received a call from Carlos, who asked him about his
“loyalty” to the defendant and Carlos. Carlos also told Clark that he and the defendant “were
good” and had disposed of the gun. Carlos sent Clark some Snapchats, but Clark deleted them and
did not remember their content.
¶ 11 Based on this evidence, the trial court’s determination that the defendant posed a real and
present threat to the safety of Clark, Elizondo, and the general community was not against the
manifest weight of the evidence. Although the defense argued that the defendant’s actions were
the result of provocation (the comment that Ambriz had earlier said that he would “merk” the
defendant), the trial court did not regard this as justification for the defendant’s actions in pulling
out a gun and precipitously shooting Ambriz, and we cannot say that this finding was erroneous.
Further, the defendant was carrying a gun despite the fact that he had no Firearm Owner’s
Identification Card, indicating that he was unwilling to abide by restrictions on his access to
weapons. And although it was Carlos, not the defendant, who called Clark the next morning to
ask about his “loyalty,” it is a reasonable inference that the defendant knew of the call and was a
willing participant in the attempt to obstruct justice. These are specific articulable facts that
supported the trial court’s determination that the defendant posed a threat to the community as well
as to the witnesses, Clark and Elizondo.
¶ 12 The defendant next argues that the State failed to prove that no conditions or combination
of conditions could have mitigated the risk of further violence and the trial court failed to
adequately consider alternatives to pretrial detention. Under section 110-6.1(g)(3) of the Code, an
order for pretrial detention must be based on, among other things, clear and convincing evidence
that “no condition or combination of conditions” of pretrial release can mitigate the real and
present threat to safety posed by the defendant. Id. § 110-6.1(g). If the trial court finds that the
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2024 IL App (2d) 230517-UState proved a valid threat to someone’s safety or the community’s safety, it must then determine
what pretrial release conditions, “if any, will reasonably ensure the appearance of a defendant as
required or the safety of any other person or the community ***.” Id. § 110-5(a). In making this
determination, the trial court should consider: (1) the nature and circumstances of the offense
charged; (2) the weight of the evidence against the defendant; (3) the history and characteristics of
the defendant; (4) the nature and seriousness of the specific, real, and present threat to any person
that would be posed by the defendant’s release; and (5) the risk that the defendant will obstruct or
attempt to obstruct the criminal justice process. Id. No single factor is dispositive. Id. As with
the finding of dangerousness, we review the trial court’s finding, regarding whether the imposition
of conditions on a defendant’s pretrial release would mitigate the safety risk posed by the
defendant, under the manifest weight of the evidence standard. Indeck Energy Services, 2021 IL
125733, ¶ 56.
¶ 13 Here, the trial court heard and considered the nature of the charged offenses and the
circumstances of the incident, the defendant’s past access to guns and unwillingness to obey laws
restricting his access to them, and the defendant’s brother’s actions in contacting Clark to ask about
Clark’s “loyalty.” The defendant argues that the trial court erred because, in its written explanation
of why no conditions of release could mitigate the danger posed by the defendant’s release, it
referred only to the defendant’s dangerousness, saying that the defendant’s “obvious inability to
consider other appropriate ways to address personal issues makes him a real threat to the
community.” However, the specific nature of the threat posed by the defendant is relevant when
considering whether that threat can be mitigated by the imposition of conditions of release. People
v. Jones, 2024 IL App (2d) 230534-U, ¶ 20. Based on the evidence heard by the trial court, we
cannot conclude that the trial court’s determination that no pretrial release conditions could
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2024 IL App (2d) 230517-Uadequately protect the victim’s safety was against the manifest weight of the evidence. Trottier,
2023 IL App (2d) 230317, ¶ 13.
¶ 14 For all of these reasons, the trial court did not abuse its discretion by granting the State’s
motion for pretrial detention.
¶ 15 The defendant’s final argument is that, even if his pretrial detention is upheld, the trial court
erred in imposing the condition that he was not to have any contact with Clark, Elizondo, and his
brother Carlos. The State counters that section 110-6.1(m)(2) allows the court to enter such an
order with respect to a victim “or other interested party,” and these three were all witnesses to the
offense. See 725 ILCS 5/110-6.1(m)(2) (West 2022). As with any other condition of detention,
we review the trial court’s decision to order no contact for an abuse of discretion.
¶ 16 Here, the specific articulable facts of the case support the trial court’s decision to order the
defendant to have no contact with Clark, Elizondo, and Carlos. Carlos’s phone call asking Clark
about his “loyalty” suggests that the brothers were attempting to prevent witnesses’ cooperation
with the police in investigating the offense. Coupled with the fact that the defendant acted
violently and killed Ambriz and that Carlos also pulled a gun during that incident, the trial court
had ample reason to restrict the defendant’s access to the witnesses to protect their safety as well
as to prevent attempts to obstruct justice. The trial court did not abuse its discretion in ordering
no contact.
¶ 17 The pretrial detention order of the circuit court of Kane County is affirmed.
¶ 18 Affirmed.
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