People v. Rubalcava

2013 IL App (2d) 120396No. 2-12-0396
Opinion filed September 30, 2013
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Boone County.
)
Plaintiff-Appellee, )
)
v. ) No. 10-CM-776
)
ARTEMIO RUBALCAVA, ) Honorable
) John H. Young,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Hutchinson concurred in the judgment and opinion.
OPINION
¶1 In November 2011, after a bench trial, defendant, Artemio Rubalcava, was convicted of
unlawful contact with streetgang members (720 ILCS 5/25-5(a)(3) (West 2010)) and sentenced to
12 months of conditional discharge. Defendant appeals, arguing that: (1) the evidence was
insufficient to sustain his conviction; and (2) the court erred in relying on inadmissible hearsay
evidence. Because we agree with defendant’s first argument, we reverse defendant’s conviction.
¶2 I. BACKGROUND
¶3 For context, we note that the statute defining the crime of which defendant was convicted
provides that “[a] person commits *** unlawful contact with streetgang members when *** he or
2013 IL App (2d) 120396she knowingly has direct or indirect contact with a streetgang member as defined in Section 10 of
the Illinois Streetgang Terrorism Omnibus Protection Act [(Act)]” (740 ILCS 147/10 (West 2008))
after he or she was “ordered by a judge in any non-criminal proceeding to refrain from direct or
indirect contact with a streetgang member or members.” 720 ILCS 5/25-5(a)(3) (West 2010).
¶4 A. Case No. 09-CH-268: Civil Court Order
¶5 In 2009, in case No. 09-CH-268, the Boone County State’s Attorney brought, pursuant to the
Act, a civil suit against the “Latin Kings, et al.” The “et al.” referred to multiple individual
defendants, including defendant in the instant case. However, the State’s case against defendant was
settled. An agreed settlement and injunctive order, entered against defendant on August 27, 2009,
provided, in part, as follows:
“3. Upon the admission of [defendant], to the allegations of the complaint, the court finds
that the People of the State of Illinois are entitled to injunctive relief against [defendant], and
the court hereby orders [defendant] enjoined and restrained for the duration of this agreed
settlement from the following activities within the State of Illinois:
(a) Standing, sitting, walking, driving, gathering, or appearing anywhere in public
view with any other defendant or known Latin King gang member; and
(b) Standing, sitting, walking, driving, gathering, or appearing anywhere in public
view with any gang member as defined in 740 ILCS 147/10[.]”
In addition, defendant acknowledged that the foregoing prohibitions constituted a “judicial order in
[a] non-criminal proceeding prohibiting the defendant’s knowing direct or indirect contact with a
streetgang member or members within the meaning of 720 ILCS 5/25-[5(a)(3)].” The order was
signed by the State’s Attorney, defendant, and the trial judge (signature illegible).
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2013 IL App (2d) 120396¶6 In an 18-page memorandum decision issued on April 30, 2010, by trial judge Eugene G.
Doherty, case No. 09-CH-268 was resolved against the remaining defendants, including Antonio
Delgadillo. In that memorandum, the court referenced evidence showing “dozens of examples” of
Latin Kings graffiti defacing numerous properties, noting that the graffiti was identifiable as such
by virtue of Latin Kings symbology, initials, or otherwise. The court found that the general
identification of Latin Kings symbology was supported by the testimony of West Chicago Deputy
Chief of Police Bruce Malkin, while the specific identification of the graffiti in evidence as
containing Latin Kings symbology was supported by the testimony of Detective David Dammon.
The court found that the Latin Kings constitute a “streetgang” as defined in section 10 of the Act
(740 ILCS 147/10 (West 2008)), basing its finding on: (1) the fact that the graffiti promoted the Latin
Kings; and (2) Malkin’s testimony.
¶7 The court next evaluated the evidence supporting Latin Kings membership as to each
defendant. The court found that, as to some of the defendants, the State did not meet its burden of
establishing that they were gang members. As to Delgadillo, however, the court found, by a
preponderance of the evidence, that he was a member of the Latin Kings. The court noted
Dammon’s testimony that, in his opinion, Delgadillo was a member of the Latin Kings. Further, the
court noted that Sergeant Mark Pollock testified that, on July 4, 2008, Delgadillo admitted to him
that he was a member of the Latin Kings. Officer Kaplan testified that Delgadillo made the same
admission to him on August 30, 2008, and Detective Woody testified that, on July 13, 2009,
Delgadillo told him that he had been an associate of the Latin Kings for three years and became a
full-fledged member the prior year. Further, the court noted that it had considered an exhibit
showing Delgadillo’s tattoo of a kingly figure wearing a five-pointed crown with the initials “ALK,”
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2013 IL App (2d) 120396which Malkin and Dammon testified represented the words “Almighty Latin Kings.” According to
the court, the tattoo also appeared to include “13K,” which Malkin and Dammon testified
represented terminology against the Surenos gang. Finally, the court considered an exhibit showing
Delgadillo wearing Latin Kings colors (a gold and black sweatshirt) in the presence of several
individuals, at least three of whom were flashing recognizable Latin Kings hand signs. Although
Delgadillo testified that he was not a Latin Kings member and that the initials in the tattoo were
“HLK,” which represented the Los Angeles neighborhood in which he was born, the court found that
the State had proved that Delgadillo was “more likely than not” a member of the Latin Kings. “Most
significant to the Court are Delgadillo’s multiple admissions of membership and his tattoos
reflecting Latin Kings terminology.”
¶8 Concerned about potential infringement on the remaining defendants’ constitutional rights
to associate in noncriminal ways, the court entered a “no association” order (as requested by the
State) but stayed enforcement of the order so that the defendants could take advantage of the
opportunity to “step away” from the gang.1 Finally, the court noted that the case against defendant
had been resolved via the previously entered agreed order.
¶9 B. Criminal Trial Evidence
¶ 10 On September 7, 2010, defendant was charged in the instant case with unlawful contact with
streetgang members in that, on August 22, 2010, he “knowingly had direct contact with Antonio
Delgadillo, a member of the Latin Kings, a streetgang, after said defendant had been ordered [not
1
We note that, with respect to the stay, the defendants who did not settle arguably fared better
than defendant here, as his no-association order was not stayed but, rather, was entered in exchange
for dismissal of the complaint.
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2013 IL App (2d) 120396to] by a judge in a non-criminal proceeding, to wit: 2009CH268 in that said defendant exited the
residence of 1432 Garfield and entered a vehicle with Antonio Delgadillo, a known street gang
member.”2
¶ 11 At trial, Officer Joseph Slomka testified that, on August 22, 2010, he responded to a
disorderly conduct call from the 1400 block of Garfield Avenue in Belvidere. The disorderly
conduct call did not involve defendant. While at the scene, however, Slomka saw two parked cars;
he ran their license plate numbers and determined that one of them belonged to defendant. Slomka
then saw Delgadillo exit the residence at 1432 Garfield Avenue. Slomka spoke with Delgadillo, and
then Delgadillo returned inside the house. Later, Slomka saw two people exit Delgadillo’s house
and get into defendant’s car. The car drove down the street, made a U-turn, and then returned to
1432 Garfield. Slomka saw Degadillo and defendant exit the vehicle.
¶ 12 Slomka testified that he recognized defendant “through previous contacts,” and that “he’s
also listed in our gang data base, and I was familiar with our Belvidere Police Department gang
database.” Defense counsel objected as follows: “Objection to that portion, if he saw him, or
previous contact. First of all, when.” The court overruled the objection, noting for defense counsel,
“that’s the basis of his knowledge.” When Slomka was asked how he had recognized Delgadillo,
he replied, “I’ve had previous contact with him and he’s also listed in our gang database.” At that
point, the court interjected “[s]ame objection by [defense counsel], same ruling. You can cross-
examine him on it.” Slomka continued, testifying that he approached the two men and asked what
2
Thus, the alleged contact occurred approximately 12 months after entry of the settlement
order barring defendant from contact with gang members and approximately 4 months after the
memorandum decision was issued.
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2013 IL App (2d) 120396they were doing. Defendant, who had been driving, said that he was moving his car. While Slomka
talked with defendant, Delgadillo was present. Slomka was aware of a court order prohibiting
defendant and Delgadillo from having contact with one another (though he had not read it), and he
arrested defendant.
¶ 13 As to the gang database, Slomka testified on cross-examination that he did not create it but
that he and other officers could enter information into it. The gang database can be updated, but it
is not updated on a regular schedule. Although information can be removed from the database, such
corrections do not typically occur:
“DEFENSE COUNSEL: So if someone was at one point listed in here as a gang
member, are they ever removed?
SLOMKA: Not to my knowledge.
DEFENSE COUNSEL: So people that go into the gang database remain there for life
as far as you know?
SLOMKA: Possibly, yes.”
Slomka further agreed that, sometimes, people do remove themselves from gang membership.
¶ 14 Also on cross-examination, Slomka testified that his prior contact with defendant was
probably within one year before the August 2010 contact. He did not recall previously arresting
defendant or a specific date of any prior contact. Similarly, Slomka could not recall a specific date
when he had previous contact with Delgadillo, but he estimated that it had occurred a few months
before the August 2010 contact. On redirect, Slomka testified that, when he had prior contact with
defendant and Delgadillo, they were in the company of other gang members, but he could not recall
the reason for the prior contact. He added that the information in the gang database came from local
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2013 IL App (2d) 120396police officers and Boone County sheriff’s deputies, and it reflected who an alleged gang member
was with and what he or she was doing at the time of the police contact.
¶ 15 The State next called Delgadillo to the stand. Delgadillo testified that he was not a gang
member, had never been a gang member, and, specifically, was not a gang member on August 22,
2010. He agreed that the State had previously accused him of being a member of the Latin Kings.
Delgadillo testified that, on August 22, 2010, defendant was dating Delgadillo’s sister.
¶ 16 The State asked the court to take judicial notice of “the order in 09-CH-268,” which, “on
page two of that order, Your Honor, paragraph number two, identifies *** Mr. Delgadillo as a gang
member despite his denying it, Judge. And reference paragraph number two, where it indicates that
the behavior alleged in this charge, the association with other known gang members, is prohibited,
Judge.” The court noted that the “order” was marked as People’s exhibit No. 2, and summarized it
as the “order memorializing the memorandum of decision in 09-CH-268.”3 The court asked defense
counsel if there was any objection, and defense counsel responded, “Judge, I believe the court can
take judicial notice of its own file.” (Emphasis added.) The State rested.
3
Although the court and the parties referenced an order that purportedly memorialized the
April 30, 2010, memorandum decision, referring to it as People’s exhibit No. 2, the record on appeal
reflects People’s exhibit No. 2 as being only the memorandum decision itself. Indeed, the
memorandum decision does not correspond to the State’s summary that page 2, paragraph 2,
identifies Delgadillo as a gang member and prohibits contact with him. Thus, there appears to be
a separate order, which was entered to memorialize the memorandum decision, that is not contained
in the appellate record.
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2013 IL App (2d) 120396¶ 17 Defendant moved for a directed finding. In argument, defendant noted that “in the
memorandum” Judge Doherty found several individuals to be gang members by only a
preponderance of the evidence and that, in the criminal case, the State needed evidence, beyond the
“order,” to prove that fact beyond a reasonable doubt. Defendant reiterated that, “[b]ased upon the
order, and the memorandum of decision, it is clear that it is strictly by a preponderance of the
evidence, not proof beyond a reasonable doubt.”
¶ 18 After hearing argument, before retiring to consider the motion, the court commented that it
was “going to look at the memorandum of decision, while I believe that’s not been presented as an
exhibit, I think the order is what is effective, but I want to read the memorandum of decision that got
memorialized by the order.” Further, the court mentioned, “I’m aware of and I believe that there is,
as part of 09-CH-268, I believe that there was an agreed settlement and injunctive order signed by
your client.” Defense counsel responded that, while that might be the case, the State did not present
that to the court or ask that it be entered. The court responded, “Well, my problem is that I’m aware
of it,” and thus it would consider it.
¶ 19 On November 1, 2011, the court denied defendant’s motion for a directed finding. In doing
so, it noted that the injunction against defendant precluded contact with “any other defendant” from
case No. 09-CH-268, which included Delgadillo. Defendant presented no evidence and rested.
¶ 20 On November 29, 2011, the parties reconvened for closing arguments and a judgment. In
his closing argument, defense counsel reiterated that the State had not asked the court to take judicial
notice of defendant’s settlement and injunctive order but, instead, “[it] asked to enter the
memorandum of decision [and it] asked the court to take notice of the memorandum.” Defendant
noted that the findings made by Judge Doherty, where the testimony was more in-depth than at the
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2013 IL App (2d) 120396criminal trial, satisfied only the preponderance standard. “The State would have to, at the very least,
present that evidence again, and probably more so, to prove that, on that date, on August 22, [2010],
*** the State must prove again that Latin Kings was a streetgang and that Mr. Delgadillo was a street
gang member ***.”
¶ 21 The court found defendant guilty of unlawful contact with streetgang members. When
announcing its decision, the court noted that, although Slomka testified about gang contacts and the
gang database, which was permissible to explain his information and where he obtained his
knowledge, it was not, in and of itself, enough (presumably to establish gang membership), “because
again, specifically, he indicated that he’s not aware that anything is ever deleted from that database.”
The court further noted that the preponderance-of-the-evidence standard applied in the civil case and
that, in the current case, Delgadillo had testified that he was not a gang member. Nevertheless, the
court announced:
“[B]ased on [defendant] signing the agreed order, where Mr. Delgadillo was also a
defendant, based upon Officer Slomka’s testimony, and based upon the finding of Judge
Doherty, I think the State meets its burden that he is a gang member and then[,] therefore[,]
what falls from that is that there was contact.”
The court, noting that it wished to show its work for the record, continued, “Slomka testified [that
Delgadillo] was in a gang. [Defendant] signed an order that agreed to that —the statute would apply
to him. That order that he signed was in the same case where Mr. Delgadillo was named as a
defendant, and Judge Doherty found that he was more probably than not a member of a gang. I think
that’s sufficient to show he’s a member of a gang.” Defense counsel noted that, regardless of the
order, there needed to be evidence to prove the street gang membership by more than a
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2013 IL App (2d) 120396preponderance. The court answered, “I believe Slomka’s testimony. The other factor, that Mr.
Delgadillo was a defendant in the case where [defendant] signed the agreed order.” In addition, the
court again noted that Judge Doherty found by a preponderance of the evidence that Delgadillo was
a gang member. The court held that those things collectively satisfied the beyond-a-reasonable-
doubt standard.
¶ 22 In his motion to reconsider and set aside the judgment, defendant argued, in part, that the
court erred in: (1) assuming that the findings in the “memorandum of decision” remained factually
correct and applicable on the date in question; and (2) elevating the findings in the memorandum,
which were specifically based on a preponderance standard, to proof beyond a reasonable doubt. In
his oral argument on the motion, defense counsel noted that there had been discussion regarding
Judge Doherty’s memorandum and, “while the court did take judicial notice of it, *** even if
everything in that memorandum was accurate, it was only accurate up until the findings were made
in that memorandum.” Counsel continued that the memorandum was issued months before the
August 2010 contact, that Judge Doherty found that Delgadillo was a Latin Kings member only at
the time of the memorandum and only by a preponderance of the evidence, and that the State did not
present additional evidence to establish proof beyond a reasonable doubt. Further, counsel argued,
the State did not show that, even if Delgadillo had been a member of the Latin Kings, he continued
to be so. Specifically, counsel noted that Judge Doherty’s finding that Delgadillo was a Latin Kings
member:
“was based on quite a bit of testimony, and everything else, but it only rose to the level of
preponderance of the evidence. There’s no way to suggest that that then rises to the level of
proof beyond a reasonable doubt. The State did nothing to add to that. They didn’t call in
any of those witnessses. *** So, even if Mr. Delgadillo was a member of the Latin Kings,
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2013 IL App (2d) 120396there was no testimony, no proof, that on [August 22, 2010], *** he still was. In fact, that
would have been in direct contrast to what Judge Doherty ordered him to do, which was to
stop being a gang member. There’s no reason to believe, then, if he was a gang member, that
he didn’t follow that judge’s order to stop being a gang member. If that’s the case, then on
[August 22, 2010], he wasn’t a gang member.”
¶ 23 On March 27, 2012, the court denied defendant’s motion to reconsider. In doing so, the court
noted that defendant’s strongest argument was that the State needed to prove that, on August 22,
2010, Delgadillo remained a Latin Kings streetgang member. The court sentenced defendant to 12
months’ conditional discharge. Defendant appeals.
¶ 24 II. ANALYSIS
¶ 25 Defendant argues first that the evidence was insufficient to establish the essential elements
of the crime. Specifically, defendant contends that the State failed to prove beyond a reasonable
doubt that, when he had contact with Delgadillo on August 22, 2010, Delgadillo was a Latin Kings
streetgang member. Further, defendant contends that the State presented no evidence that the Latin
Kings is a streetgang as defined by the Act. Defendant contends that, because the State failed to
present any evidence on either of these elements of the offense, we must reverse his conviction. For
the following reasons, we agree with defendant’s first contention.
¶ 26 “[T]he due process clause ‘protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ”
People v. Jeffries, 164 Ill. 2d 104, 114 (1995) (quoting In re Winship, 397 U.S. 358, 364 (1970)).
When reviewing a challenge to the sufficiency of the evidence, whether from a bench or jury trial,
we consider whether, after viewing the evidence in the State’s favor, any rational trier of fact could
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2013 IL App (2d) 120396have found the crime’s essential elements beyond a reasonable doubt. People v. Hernandez, 2012
IL App (1st) 092841, ¶ 13. The State may rely upon circumstantial evidence, as long as it provides
proof beyond a reasonable doubt of each element of the crime charged. People v. Laubscher, 183
Ill. 2d 330, 335-36 (1998). “However, there must be some evidence giving rise to a reasonable
inference of defendant’s guilt; the State may not leave to conjecture or assumption essential elements
of the crime.” (Emphasis in original.) Id.¶ 27 The crime with which defendant was charged required the State to prove that defendant had
contact with a streetgang member, as defined by the Act, after being ordered by a court in a
noncriminal proceeding to refrain from such contact. 720 ILCS 5/25-5(a)(3) (West 2010). The Act
defines “streetgang member” as:
“[A]ny person who actually and in fact belongs to a gang, and any person who knowingly
acts in the capacity of an agent for or accessory to, or is legally accountable for, or
voluntarily associates himself with a course or pattern of gang-related criminal activity,
whether in a preparatory, executory, or cover-up phase of any activity, or who knowingly
performs, aids, or abets any such activity.” (Emphasis added.) 740 ILCS 147/10 (West
2010).
¶ 28 The State’s argument that the evidence was sufficient to sustain defendant’s conviction is
essentially premised on the evidence contained in the civil memorandum decision. Specifically, the
State asserts that, where defendant agreed that the court could take judicial notice of People’s exhibit
No. 2, he allowed the court to take judicial notice of all of the facts, not just the ultimate findings,
contained in the memorandum decision, and he thereby waived (or, by not objecting, forfeited) any
right to appeal the court’s having done so. The facts in the memorandum decision, the State asserts,
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2013 IL App (2d) 120396included testimony from police officers who opined that the Latin Kings is a streetgang and evidence
regarding: Delgadillo’s tattoos; photographs of Delgadillo with other individuals who were flashing
Latin Kings signs; photographs of Delgadillo wearing Latin Kings colors; and purported admissions
Delgadillo made to officers that he was a Latin Kings member. The State concedes that defendant
did not expressly stipulate to the evidence contained in the exhibit; however, it argues that
defendant’s agreement to judicial notice and his failure to specifically object to judicial notice of the
facts in the memorandum was tantamount to a stipulation, and therefore defendant may not challenge
the sufficiency of the evidence.
¶ 29 Defendant disagrees that, by accepting that judicial notice could be taken of the civil order,
he conceded that the court could consider the evidence therein for purposes of his criminal trial; he
argues, therefore, that he may raise a sufficiency argument. First, defendant notes, the State
requested only that the court take judicial notice of the civil order, not the memorandum’s facts
concerning the civil trial evidence, which constituted hearsay. As such, defendant argues, his
agreement was limited to the State’s request: that the court take judicial notice that Judge Doherty
found by a preponderance of the evidence that Delgadillo was a gang member. Second, defendant
asserts that the court could not take judicial notice of a witness’s testimony at a prior hearing,
because it constitutes inadmissible hearsay. To do so, defendant argues, would violate his right to
confrontation, since the civil witnesses testified in another person’s civil trial (Delgadillo’s) and not
in defendant’s criminal trial. Therefore, defendant argues, his failure to object to judicial notice of
the order was not tantamount to a stipulation, because his agreement extended only to that which
may be “judicially noticed,” i.e., that capable of ready determination by resort to sources whose
accuracy cannot be reasonably questioned. Third, defendant argues that, not only did the State not
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2013 IL App (2d) 120396request it, but the court did not take judicial notice of all of the facts contained in the memorandum,
as nothing in the record indicates that the court’s decision relied on hearsay evidence from the civil
case to find him guilty in the criminal case. Thus, defendant argues that we should reject the State’s
waiver argument and, in turn, its sufficiency-of-the-evidence argument because that argument is
premised on its incorrect belief that the evidence from the civil trial was admitted and considered
in the criminal trial.
¶ 30 We reject the State’s waiver and forfeiture argument and disagree with its premise that
defendant, by agreeing to judicial notice generally and not objecting to judicial notice of the file
(including the memorandum),4 conceded the admissibility of the contents of the memorandum as
evidence to be used against him in the criminal trial. First, the information at issue, i.e., police
officers’ testimony about Delgadillo and descriptions of photographic evidence, is not the type of
information that is subject to judicial notice. Specifically, Illinois Rule of Evidence 201(b) provides:
“A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Ill. R.
Evid. 201(b) (eff. Jan. 1, 2011); see also People v. Davis, 65 Ill. 2d 157, 165 (1976) (judicial notice
4
However, we also reject defendant’s argument that, because the State requested only that
the court take judicial notice of the civil “order,” his decision not to object was limited to the order
itself (and not the memorandum). Regardless of the wording of the State’s request, when asked
whether he objected, defense counsel agreed that “the court can take judicial notice of its own file.”
(Emphasis added.) Further, throughout the remaining proceedings, defendant mentioned that the
court had taken judicial notice of the memorandum.
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2013 IL App (2d) 120396may be taken of facts that, if not generally known, are “readily verifiable from sources of
indisputable accuracy”). Clearly, the officers’ testimony and the descriptions and interpretations of
the photographs fit neither of the aforementioned two categories, if for no other reason than that
Delgadillo himself, in both the criminal and the civil trials, disputed them.
¶ 31 Second, although a court may take judicial notice of matters of record (i.e., that Judge
Doherty issued the memorandum decision, which contained various findings), “taking judicial notice
of matters of record in a court’s own proceedings cannot result in admitting hearsay evidence where
it would otherwise be prohibited.” (Emphasis added.) In re A.B., 308 Ill. App. 3d 227, 237 (1999);
see also In re Estate of Michalak, 404 Ill. App. 3d 75, 94 n.2 (2010) (noting same in addressing a
hearsay challenge to the trial court’s decision to take judicial notice of a previously-filed report and
to consider it in its entirety (including all statements therein)).
¶ 32 In People v. Philippi, 186 Ill. App. 3d 353, 358-59 (1989), this court held that a court may
not take judicial notice of testimony given by nonparty witnesses in an unrelated case. There, the
State objected when the defendant moved to admit into evidence the testimony of two witnesses
from an unrelated case that the simulator that was used to test the defendant’s blood-alcohol levels
in both cases was defective. The trial court admitted the testimony, noting that, although the witness
opinions were not in the “same realm of, you know, me taking judicial notice about the sun and
moon and stars and other scientific things,” it did not wish to waste time and resources, particularly
where the former testimony took place before the same judge and prosecuting and defense attorneys.
Id. at 357. In reversing the trial court, this court noted the applicable law:
“ ‘The general rule, which seems to be supported by all of the authorities, is that the evidence
given by a witness in a previous action is relevant for the purpose of proving the matters
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2013 IL App (2d) 120396stated in a subsequent proceeding, or in a later stage of the same proceedings, when the
witness is dead, or is insane, or is so ill that he will probably never be able to travel, or is
kept out of the way by the adverse party, and in some States when he is out of the jurisdiction
of this court, provided there be identity of parties and issues in the former proceeding and the
later.’ ” (Emphasis in original.) Id. at 358 (quoting George v. Moorhead, 399 Ill. 497, 500
(1948)).
We further noted that the rule would, therefore, exclude the former testimony of a witness still alive
and capable of being subpoenaed as a witness. Id.¶ 33 Similarly, in People v. Brown, 177 Ill. App. 3d 671 (1988), the defendant was charged with
driving under the influence (DUI) and the arresting officer testified at a hearing on a petition to
rescind the summary suspension of the defendant’s driver’s license. Later, when the defendant
moved to suppress evidence at the DUI trial, the court took judicial notice of the arresting officer’s
testimony from the summary suspension hearing. On appeal, the court held that, where there was
no showing that the officer could not have been subpoenaed to appear, it was error to take judicial
notice of his prior testimony. Id. at 673. Specifically, the court stated:
“ ‘In taking judicial notice of the record or prior proceedings in this cause, the circuit court
apparently sought to expedite matters and eliminate the need to recall nonparty witnesses.
However, this procedure also skirted the normal rule that prior testimony is hearsay that may
be used as substantive evidence only when the witness is unavailable by death, illness or
other such cause.’ ” Id. at 672 (quoting In re Gonder, 149 Ill. App. 3d 627, 629 (1986)).
¶ 34 Given the foregoing, the court here could not, absent a stipulation or clear waiver or
forfeiture, consider substantively the evidence summarized in the memorandum decision. Although
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2013 IL App (2d) 120396the court could take judicial notice of the findings in the memorandum decision, the foregoing case
law instructs that it could not consider as substantive evidence against defendant the evidence
summarized in the memorandum, which was provided by nonparty witnesses in another case against
another defendant (i.e., Delgadillo). To do so would violate defendant’s right to confront witnesses
and would be an improper use of judicial notice. We reject the State’s assertion that waiver, the
intentional relinquishment of a known right (People v. Phipps, 238 Ill. 2d 54, 62 (2010)), or
forfeiture, the failure to make a timely assertion of the right (id.), applies here. Nothing suggests
that, when defendant did not object to the State’s request for “judicial notice” of the civil order, his
acquiescence extended to the substantive admission of the evidence in the civil case. Again,
defendant and the State did not enter into a stipulation (i.e., an agreement between parties with
respect to an otherwise disputed issue (People v. Woods, 214 Ill. 2d 455, 468 (2005)). Further, given
the definition of judicial notice and the case law reflecting the limitations thereof, we cannot
conclude that, when defendant agreed that the court could take judicial notice of the file (including
the order and memorandum), he conceded that the evidence summarized therein, which resolved the
civil case against Delgadillo, could be used substantively against him in the criminal matter.
¶ 35 Moreover, and as defendant notes, nowhere in the record does it appear that the trial court
even considered as substantive evidence against defendant the evidence summarized in the
memorandum. Indeed, the trial judge is presumed to know the law. People v. McCoy, 207 Ill. 2d
352, 355 (2003). Here, the court announced the bases for its decision (specifically noting that it
wished to show its work for the record), but it did not explicitly adopt or reference the evidence from
the civil case as evidence in the criminal case. Instead, the court considered Judge Doherty’s
“finding,” by a preponderance of the evidence, that Delgadillo was a gang member as some evidence
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2013 IL App (2d) 120396thereof, and then viewed the following as proving that fact beyond a reasonable doubt: (1) the fact
that defendant’s settlement order barred him from contact with other civil defendants and Delgadillo
was one such defendant; and (2) Slomka’s testimony. For the following reasons, however, we
conclude that the court erred in both respects and that defendant’s conviction must be reversed.
¶ 36 First, by considering defendant’s contact with another defendant from the civil case as
evidence against him in the criminal case, the court appears to have mistakenly applied the statute.
To bring defendant’s violation of the civil order under the purview of the criminal statute, the contact
must have been with a gang member. 720 ILCS 5/25-5(a)(3) (West 2010) (“[a] person commits ***
unlawful contact with streetgang members when *** he or she knowingly has direct or indirect
contact with a streetgang member” after he or she was “ordered by a judge in any non-criminal
proceeding to refrain from direct or indirect contact with a streetgang member or members”). The
fact that defendant violated the civil order by having contact with another defendant from the civil
case does not speak to whether that other defendant was, beyond a reasonable doubt, a gang member.
Defendant’s violation of the civil order by having contact with another defendant might constitute
contempt of court, but it is not within the purview of the criminal statute, which prohibits contact
with a gang member. Indeed, we note that, in the civil case, Judge Doherty found that, as to some
of the defendants, the State did not meet its burden of establishing that they were gang members.
Accordingly, while defendant’s contact with those defendants might violate his settlement
agreement, it would not constitute criminal conduct under section 25-5(a)(3).
¶ 37 Second, as to Slomka’s trial testimony, the court stated that it “believed” it, but Slomka never
actually testified that Delgadillo was a gang member. Rather, and in contrast to trial testimony that
has been found sufficient to sustain a conviction of unlawful contact with a gang member, Slomka
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2013 IL App (2d) 120396testified only that he knew Delgadillo from prior contacts, that Delgadillo was in the gang database,
and that, when he had encountered Delgadillo in the past, Delgadillo was in the company of gang
members. Cf. People v. Jamesson, 329 Ill. App. 3d 446, 450-51 (2002) (officer testified at trial that
the defendant had contact with Sam Banuelos; according to the officer, he had had numerous prior
contacts with Banuelos (resulting in tickets and/or charges), Banuelos was a known gang member,
Banuelos had admitted to the officer that he was a gang member, and Banuelos wore gang colors and
was usually in the presence of other gang members; the officer opined at trial that, based on his
previous contacts with Banuelos, previous records, and the area where he had observed Banuelos,
Banuelos was a Latin Counts gang member on the date of the contact that formed the basis of the
charges against the defendant). Further, in ruling, the court commented that it did not find Slomka’s
testimony that Delgadillo was in the gang database as sufficient to establish gang membership,
because Slomka agreed that, if someone leaves a gang, the database might never corrected. Finally,
we note that, in its response to defendant’s second argument on appeal (that the gang database was
hearsay and could not be considered to establish gang membership), the State concedes that
Slomka’s testimony about the gang database was introduced not to establish gang membership or
the truth of the matter asserted but, rather, only as “an explanation of his investigatory procedures”
and “to explain to the court how he was familiar with defendant and Mr. Delgadillo, and to give
context to his reason for approaching them.” Accordingly, the court’s comment that “Slomka
testified that [Delgadillo] was in a gang” is not supported by the record. Thus, while Slomka’s
testimony sufficed to satisfy the contact element of the crime, the court’s finding that it established
Delgadillo’s gang membership is not supported by the evidence.
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2013 IL App (2d) 120396¶ 38 Therefore, as Slomka did not testify that Delgadillo was a gang member, all that was left for
the court to consider was the civil finding, by a preponderance of the evidence, that Delgadillo was
a gang member, and Delgadillo’s testimony before the court that he was not, and never had been, a
gang member. The court could have rejected Delgadillo’s denial on credibility grounds, but as
defendant notes, the State presented no evidence, beyond the civil finding, that Delgadillo was a
gang member. As such, we conclude that the evidence was insufficient to establish that on August
22, 2010, defendant had contact with a person who was, beyond a reasonable doubt, a gang member.
¶ 39 In sum, we conclude that the trial court erred where it found that the State met its burden of
proving, beyond a reasonable doubt, that, when defendant had contact with Delgadillo, Delgadillo
was a streetgang member. We need not address defendant’s contention that the State failed to prove
that the Latin Kings is a streetgang. Because we reverse defendant’s conviction on sufficiency
grounds, we need not address his alternative appellate argument.
¶ 40 III. CONCLUSION
¶ 41 For the aforementioned reasons, the judgment of the circuit court of Boone County is
reversed.
¶ 42 Reversed.
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