People v. Gallegos-Moreno

2023 IL App (1st) 220958-UNo. 1-22-0958
Order filed September 1, 2023
Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
__________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 18 CR 6125
)
ROSALIO GALLEGOS-MORENO, ) Honorable
) Ursula Walowski,
Defendant-Appellant. ) Judge presiding.
JUSTICE NAVARRO delivered the judgment of the court.
Presiding Justice Delort and Justice Mitchell concurred in the judgment.
ORDER
¶1 Held: Where the offenses of predatory criminal sexual assault of a child and aggravated
criminal sexual abuse do not contain identical elements, defendant’s six-year
sentence on Count 1 for predatory criminal sexual assault of a child does not violate
the proportionate penalties clause of the Illinois Constitution.
¶2 Following a jury trial, defendant Rosalio Gallegos-Moreno was found guilty of two counts
of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse.
After the trial court merged defendant’s aggravated criminal sexual abuse conviction into one of
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his convictions for predatory criminal sexual assault of a child, the court sentenced him to 6 years’
imprisonment on both counts of predatory criminal sexual assault of a child, which by law had to
be served consecutively, for a total of 12 years’ imprisonment. On appeal, defendant contends that
his six-year sentence on Count 1 for predatory criminal sexual assault of a child violates the
proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) because it
contains identical elements to the offense of aggravated criminal sexual abuse. For the reasons that
follow, we affirm defendant’s sentence.
¶3 I. BACKGROUND
¶4 A grand jury indicted defendant with several offenses related to his conduct toward V.H.,
a minor under 13 years old. Only Count 1 is relevant to this appeal. That count alleged that
defendant committed the offense of predatory criminal sexual assault of a child in that he was at
least 17 years old and knowingly made contact between his penis and V.H.’s hand for the purpose
of his or V.H.’s sexual gratification when V.H. was younger than 13 years old. The State proceeded
to trial against defendant on three counts: Count 1, Count 2, which also alleged that defendant
committed predatory criminal sexual assault of a child, and Count 11, which alleged that defendant
committed aggravated criminal sexual abuse. Following a jury trial, defendant was found guilty
on all three counts. The trial court merged Count 11 into Count 1, and sentenced defendant to 6
years’ imprisonment on both Count 1 and Count 2, Class X felonies that by law had to be served
consecutively, for a total of 12 years’ imprisonment. Defendant did not file a postsentencing
motion and subsequently appealed.
¶5 II. ANALYSIS
¶6 Defendant contends that his Class X felony sentence on Count 1 for predatory criminal
sexual assault of a child violates the proportionate penalties clause of the Illinois Constitution (Ill.
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Const. 1970, art. I, § 11) because the offense, as alleged in his indictment, contains identical
elements as the offense of aggravated criminal sexual abuse, which is penalized less severely as a
Class 2 felony.
¶7 The proportionate penalties clause of the Illinois Constitution provides that “[a]ll penalties
shall be determined *** according to the seriousness of the offense.” Id. As relevant here, a
sentence can violate the proportionate penalties clause “if it is greater than the sentence for an
offense with identical elements.” People v. Ligon, 2016 IL 118023, ¶ 10. The overarching inquiry
in a challenge pursuant to this clause is whether our legislature set a sentence commensurate with
the seriousness of the offense. People v. Guevara, 216 Ill. 2d 533, 543 (2005). “If the legislature
determines that the exact same elements merit two different penalties, then one of these penalties
has not been set in accordance with the seriousness of the offense.” People v. Sharpe, 216 Ill. 2d
481, 522 (2005).
¶8 “[A]n identical elements proportionality violation arises out of the relationship between
two statutes—the challenged statute, and the comparison statute with which the challenged statute
is out of proportion.” People v. Blair, 2013 IL 114122, ¶ 32. When determining whether two
offenses share identical elements, we use the aptly named identical elements test. People v. Sroga,
2022 IL 126978, ¶ 12. The test is objective (People v. Clemons, 2012 IL 107821, ¶ 46), and it
“does not consider the offenses as applied to an individual defendant.” People v. Williams, 2015
IL 117470, ¶ 19. The identical elements test only concerns “the elements of the offenses as the
legislature enacted them.” People v. Johanson, 2023 IL App (2d) 210690, ¶ 27, appeal allowed,
No. 129425) (Ill. May 24, 2023). If two offenses share identical elements, we must determine
whether the penalties for committing the offenses are also the same. Sroga, 2022 IL 126978, ¶ 12.
“If the penalties are not the same, the statute with the harsher penalty will be deemed to violate the
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proportionate penalties clause.” Id. The constitutionality of a statute is a question of law, which
we review de novo. Ligon, 2016 IL 118023, ¶ 11.
¶9 Before addressing the merits of defendant’s proportionate penalties challenge, we must
determine whether he forfeited the claim of error, as the State argues, by failing to raise it in the
trial court. To preserve a claim of sentencing error, the defendant must object to the issue in the
trial court and raise it in a postsentencing motion. People v. Stewart, 2022 IL 126116, ¶ 11.
Although defendant concedes he did neither, he asserts that his constitutional challenge can be
raised at any time. See People v. Bryant, 128 Ill. 2d 448, 454 (1989) (generally, “a constitutional
challenge to a statute can be raised at any time”). Because he challenges the constitutionality of
the predatory criminal sexual assault of a child statute through a proportionate penalties challenge,
he has not forfeited this claim of error. See People v. Christy, 139 Ill. 2d 172, 176 (1990).
¶ 10 But there is a second potential impediment to reviewing the merits of defendant’s
proportionate penalties challenge, as defendant has not clearly defined which type of constitutional
challenge he brings. There are two types of constitutional challenges: an as-applied challenge and
a facial challenge. People v. Rizzo, 2016 IL 118599, ¶ 24. “An as-applied challenge requires a
showing that the statute violates the constitution as it applies to the facts and circumstances of the
challenging party.” People v. Thompson, 2015 IL 118151, ¶ 36. Conversely, “a facial challenge
requires a showing that the statute is unconstitutional under any set of facts, i.e., the specific facts
related to the challenging party are irrelevant.” Id.¶ 11 In defendant’s brief, he repeatedly references the offense of predatory criminal sexual
assault of a child in Count 1, as alleged, violating the proportionate penalties clause. Using this
language, one could view his challenge as being an as-applied challenge. See People v. Melvin,
2023 IL App (4th) 220385, ¶ 30, petition for leave to appeal pending, No. 129629; Johanson, 2023
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IL App (2d) 210690, ¶ 24. However, a defendant cannot raise an as-applied challenge under the
identical elements test because the test is objective and “simply compares the elements of the two
offenses to determine if [they] are the same.” Williams, 2015 IL 117470, ¶ 19.
¶ 12 When bringing a constitutional challenge, “the party challenging the statute must clearly
establish that it violates the constitution.” Sharpe, 216 Ill. 2d at 487. It is therefore incumbent upon
the challenger to make clear which type of constitutional challenge he has set forth. See Melvin,
2023 IL App (4th) 220385, ¶ 31 (finding where the defendant made “no argument the statute [was]
unconstitutional under any set of facts,” i.e., a facial challenge, the court would not “address
whether the sentencing scheme for predatory criminal sexual assault of a child is facially
unconstitutional”). In defendant’s brief, he arguably is deficient in positing the type of
constitutional challenge he has set forth, as he never asserts that he is bringing a facial
constitutional challenge or that the predatory criminal sexual assault of a child statute is
unconstitutional under any set of facts. See Thompson, 2015 IL 118151, ¶ 36. However, during
oral argument, defendant conceded his claim was a facial challenge, as such a challenge was the
only type of constitutional challenge under the identical elements test he could bring. As such, we
will address his claim.
¶ 13 With those preliminary issues resolved, we now turn to the merits of defendant’s
proportionate penalties challenge and compare the elements of predatory criminal sexual assault
of a child and aggravated criminal sexual abuse. Defendant challenges section 11-1.40(a)(1) of the
Criminal Code of 2012 (Code) (720 ILCS 5/11-1.40(a)(1) (West 2016)), which states:
“A person commits predatory criminal sexual assault of a child if that person is 17
years of age or older, and commits an act of contact, however slight, between the
sex organ or anus of one person and the part of the body of another for the purpose
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of sexual gratification or arousal of the victim or the accused, or an act of sexual
penetration, and *** the victim is under 13 years of age.” Id.As used in this statute, “contact” means “any touching.” People v. Kitch, 2019 IL App (3d) 170522,
¶ 51. A violation of section 11-1.40(a)(1) of the Code is a Class X felony with a sentencing range
of between 6 and 60 years’ imprisonment. 720 ILCS 5/11-1.40(b)(1) (West 2016).
¶ 14 The aggravated criminal sexual abuse statute defendant uses for comparison is section 11-
1.60(c)(1)(i) of the Code (720 ILCS 5/11-1.60(c)(1)(i) (West 2016)). It states: “A person commits
aggravated criminal sexual abuse if *** that person is 17 years of age or over and *** commits an
act of sexual conduct with a victim who is under 13 years of age.” As used in this statute, “sexual
conduct” is defined as:
“any knowing touching or fondling by the victim or the accused, either directly or
through clothing, of the sex organs, anus, or breast of the victim or the accused, or
any part of the body of a child under 13 years of age, or any transfer or transmission
of semen by the accused upon any part of the clothed or unclothed body of the
victim, for the purpose of sexual gratification or arousal of the victim or the
accused.” Id. § 11-0.1.
In Johanson, 2023 IL App (2d) 210690, ¶ 18, the appellate court used grammatical indications to
determine that, as a general matter, sexual conduct occurs when, for the purpose of sexual
gratification or arousal of the offender or the victim, there is: (1) knowing touching or fondling of
the offender or victim’s sex organs, anus or breast; (2) knowing touching or fondling of any body
part of a child under 13 years old; or (3) any transmission or transfer of semen by the accused on
any part of the body of the victim. A violation of section 11-1.60(c)(1)(i) of the Code is a Class 2
felony (720 ILCS 5/11-1.60(g) (West 2016)) with a sentencing range of between three and seven
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years’ imprisonment. 730 ILCS 5/5-4.5-35(a) (West 2016). Thus, predatory criminal sexual assault
of a child, a Class X felony, is punished more severely than aggravated criminal sexual abuse, a
Class 2 felony. Because the offenses have disparate sentences, if the offenses contain identical
elements, the sentence for predatory criminal sexual assault of a child would violate the
proportionate penalties clause. See Sroga, 2022 IL 126978, ¶ 12.
¶ 15 Since 2020, the appellate court has addressed the very same contention defendant raises in
this appeal four times. In People v. Deckard, 2020 IL App (4th) 170781-U, ¶ 75, the Fourth District
of the appellate court agreed that the elements of predatory criminal sexual assault of a child, “as
alleged” and proven against the defendant, “also me[t] the elements of aggravated criminal sexual
abuse.” In other words, according to the court, the two offenses had “identical elements when
applied to the facts alleged,” and therefore, the defendant’s sentences for predatory criminal sexual
assault of a child violated the proportionate penalties clause. Id.¶ 16 Following Deckard, in Johanson, 2023 IL App (2d) 210690, ¶ 27, the Second District of
the appellate court reached the opposite conclusion. In doing so, the court observed that the
element of “sexual conduct” in the aggravated criminal sexual abuse statute was “much broader
than the conduct prohibited” in the predatory criminal sexual assault of a child statute. Id. ¶ 19.
Although the court acknowledged that there were instances in which the facts alleged and proven
against a defendant would constitute both offenses, it asserted that “not all conduct that constitutes
aggravated criminal sexual abuse also constitutes predatory criminal sexual assault of a child.” Id.
¶ 20. In making this assertion, the court provided an example of an individual massaging the back
of a naked six-year-old to sexually gratify himself. Id. The court remarked that such a person could
be convicted of aggravated criminal sexual abuse, but absent an allegation that he touched the
child’s anus or sex organ, he could not be convicted of predatory criminal sexual assault of a child.
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Id. In other words, predatory criminal sexual assault of a child requires more than aggravated
criminal sexual abuse because the former offense “requires proof of a knowing touching of a sex
organ or anus for sexual gratification or arousal when the victim is under 13 [years old]” whereas
the latter offense “does not require knowing touching of such specific areas when the victim is
under 13 [years old].” Id. ¶ 22. “Rather, touching any part of the body of a victim under 13 for
sexual gratification or arousal constitutes aggravated criminal sexual abuse.” (Emphasis in
original.) Id. Thus, the court found that predatory criminal sexual assault of a child and aggravated
criminal sexual abuse did not contain identical elements. Id. ¶ 19.
¶ 17 After concluding that the two offenses did not contain identical elements, the court further
rejected the defendant’s argument that, as applied to him based on the specific charges against
him, the predatory criminal sexual assault of a child statute violated the proportionate penalties
clause. Id. ¶ 24. The court highlighted that the defendant’s argument had support in Deckard, but
asserted that Deckard had been “wrongly decided,” as the court there took a subjective, fact-based
approach to the identical elements test when the test was purely an objective one. Id. ¶¶ 24-27.
“Instead, comparing the elements of both statutes, irrespective of how the defendant committed
predatory criminal sexual assault of a child, was all that mattered.” Id. ¶ 25. The court
acknowledged that, as alleged, the defendant’s conduct satisfied the elements of both predatory
criminal sexual assault of a child and aggravated criminal sexual abuse. Id. ¶ 27. However, the
court reiterated that, under the objective identical elements test, the elements of predatory criminal
sexual assault of a child and aggravated criminal sexual abuse were not the same, and thus, the
defendant’s sentence for predatory criminal sexual assault of a child did not violate the
proportionate penalties clause. Id.-8-
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¶ 18 After Johanson, the Fourth District again faced the issue in Melvin, 2023 IL App (4th)
220385, ¶ 27. In the decision, when the defendant made his constitutional challenge under the
proportionate penalties clause, he “solely addresse[d] the facts of his case” and therefore made an
improper as-applied challenge under the identical elements test. Id. ¶¶ 27, 29, 31. Because the
defendant “ma[de] no argument the statute [was] unconstitutional under any set of facts,” i.e., a
facial challenge, the court declined to address the merits of his proportionate penalties challenge.
Id. ¶ 31. Though it did not address the merits of his claim, the court noted the recent decisions of
Deckard and Johanson. Id. ¶ 30. In discussing Deckard, the court asserted that, because it was
unpublished, it was nonprecedential. Id. Regardless, the Fourth District observed that, “[t]o the
extent the Deckard decision’s mere existence suggests a defendant can raise an as-applied
proportionate penalties challenge under the identical elements test, we emphasize the supreme
court’s decision in Williams[, 2015 IL 117470] does not allow such a challenge.” Id.¶ 19 Finally, the Second District of this court recently filed an unpublished decision in People
v. D.K., 2023 IL App (2d) 220267-U, petition for leave to appeal pending, No. 129742, which may
be cited as persuasive authority. See Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023). There, the court
agreed with the reasoning of Johanson despite the defendant’s attempts to convince the court
otherwise. D.K., 2023 IL App (2d) 220267-U, ¶¶ 12-20. Moreover, it agreed with Johanson and
Melvin that Deckard employed legally specious reasoning. Id. ¶¶ 15-16, 20. Consequently, in D.K.,
the Second District found that the offense of predatory criminal sexual assault of a child did not
contain the same elements as aggravated criminal sexual abuse, and thus, the defendant’s sentences
for the offense did not violate the proportionate penalties clause. Id. ¶ 21.
¶ 20 After thoroughly the examining the decisions in Deckard, Johanson, Melvin and D.K., we
agree with the reasoning and conclusion in Johanson and D.K. that the offense of predatory
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criminal sexual assault of a child does not share identical elements with the offense of aggravated
criminal sexual abuse. While, as alleged and proven in Count 1, defendant’s conduct toward V.H.
constituted both offenses (see 720 ILCS 5/11-1.40(a)(1); 11-1.60(c)(1)(i) (West 2016)), “not all
conduct that constitutes aggravated criminal sexual abuse also constitutes predatory criminal
sexual assault of a child.” Johanson, 2023 IL App (2d) 210690, ¶ 20. Furthermore, we agree with
Johanson, Melvin and D.K. that there are legal flaws in the Deckard decision, namely
countenancing an as-applied constitutional challenge under the identical elements test and
allowing the identical elements test to become a subjective inquiry by examining how the
defendant committed predatory criminal sexual assault of a child rather than objectively looking
at the elements of the offense compared to aggravated criminal sexual abuse.
¶ 21 Nevertheless, defendant posits that Johanson was wrongly decided. Relying on Clemons,
2012 IL 107821 and People v. Graves, 207 Ill. 2d. 478 (2003), he argues that, in order to determine
whether there is a proportionate penalties clause violation, courts must look at the elements of the
offense as alleged in the case before it. Essentially, defendant posits that, in Johanson, the court
conflated the different methods of committing the offenses of predatory criminal sexual assault of
a child and aggravated criminal sexual abuse with the actual elements of the offenses. And thus,
he contends that the Johanson court did not confine its analysis to elements relevant to the
defendant’s case.
¶ 22 However, defendant’s contentions contravene Williams, 2015 IL 117470. In that case, the
defendant was charged with multiple counts of aggravated unlawful use of a weapon based on his
lack of a Firearm Owner’s Identification (FOID) card. Id. ¶ 3. After being charged, he filed a
motion to declare the sentences for the offenses unconstitutional “ ‘[a]s [t]o [him]’ ” because the
elements of aggravated unlawful use of a weapon based on a lack of a FOID card were the same
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as a violation of the Firearm Owners Identification Card Act (430 ILCS 65/2(a)(1) (West 2012))
(FOID Card Act) yet the punishments for the two were disparate. Id. ¶ 4. The circuit court agreed
and found that the sentences for aggravated unlawful use of a weapon based on a lack of a FOID
card violated the proportionate penalties clause, and thus, the statute was unconstitutional both as
applied to the defendant and facially. Id. ¶ 5. The State appealed directly to our supreme court. Id.
¶ 23 On appeal, the court began by comparing the language of the two statutes at issue. Id. ¶¶
11-13. In doing so, the court observed that an individual violated the relevant section of the FOID
Card Act by acquiring or possessing a firearm without having a FOID card. Id. ¶ 14. On the other
hand, the court noted that an individual violated the relevant sections of the aggravated unlawful
use of a weapon statute by not having been issued a FOID card and either: (1) knowingly carrying
a firearm on his person or in any vehicle, outside the home; or (2) knowingly carrying or possessing
a firearm on his person upon any public way. Id. After making these observations, the court
highlighted that the relevant sections of the aggravated unlawful use of a weapon statute contained
“a location element that the FOID Card Act does not.” Id. One section “requires proof that a person
possessed the firearm outside his home,” and another section “requires proof that a person
possessed the firearm upon any public way.” Id. Conversely, according to the court, the FOID
Card Act lacks a location requirement. Id. The court stated:
“A person who acquires or possesses a firearm without also possessing a valid
FOID card violates the FOID Card Act regardless of his location. A violation of the
FOID Card Act can occur in one’s home; however, such conduct would not be a
violation of [the aggravated unlawful use of a weapon statute]. Because [aggravated
unlawful use of a weapon] has this additional location element, we find that the
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offense of [aggravated unlawful use of a weapon] and a violation of the FOID Card
Act are not identical.” Id.
Having found that the offenses were not identical, our supreme court concluded there was no
proportionate penalties violation. Id.
¶ 24 In arriving at this conclusion, the court rejected the defendant’s argument that, because an
individual who possesses a firearm while not having a FOID card simultaneously violates both the
aggravated unlawful use of a weapon and FOID Card Act statutes, the statutes must have identical
elements. Id. ¶ 18. The court posited that such a situation “is not always true,” as “a person can
violate the FOID Card Act by possessing a firearm in his home without also having in his
possession a FOID card, whereas such conduct would not violate the [aggravated unlawful use of
a weapon] statute.” Id. The defendant also argued that, to determine whether there was a
proportionate penalties violation, the court had to consider the offenses as applied to his case. The
court swiftly rejected such an argument, asserting that “[t]he identical elements test simply
compares the elements of the two offenses to determine if the offenses are the same” and “does
not consider the offenses as applied to an individual defendant.” Id. ¶ 19.
¶ 25 Turning back to the instant case, just as in Williams, although we acknowledge while, as
alleged and proven in Count 1, defendant’s conduct toward V.H. constituted both predatory
criminal sexual assault of a child and aggravated criminal sexual abuse, it is not always true that
someone’s conduct would constitute both offenses. See Johanson, 2023 IL App (2d) 210690, ¶ 20.
This is because the terms “contact” in the predatory criminal sexual assault of a child statute and
“sexual conduct” in the aggravated criminal sexual abuse statute do not mean the same thing. See
id. ¶ 19. And because these terms do not mean the same thing and it is possible to commit predatory
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criminal sexual assault of a child while not committing aggravated criminal sexual abuse, the two
offenses do not share identical elements. See Williams, 2015 IL 117470, ¶¶ 17-18.
¶ 26 Furthermore, when defendant asks us to look at the elements of the relevant offenses
alleged in his case, which he repeatedly does in his brief and did at oral argument, he tacitly
requests that we employ a subjective analysis by examining how he committed predatory criminal
sexual assault of a child in Count 1 rather than objectively looking at the elements of that offense
compared to the elements of aggravated criminal sexual abuse to determine whether a
proportionate penalties clause violation exists. As our supreme court stated in Williams, we only
look at the elements of predatory criminal sexual assault of a child and aggravated criminal sexual
abuse, and do not consider the offenses as applied to the instant defendant. Id. ¶ 19. Moreover, the
appellate court rejected a nearly identical argument in D.K., 2023 IL App (2d) 220267-U, ¶¶ 17-
19, which again we may cite as persuasive authority. See Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023).
Consequently, the predatory criminal sexual assault of a child statute does not violate the
proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), and
defendant’s six-year sentence on Count 1 for the offense was proper.
¶ 27 III. CONCLUSION
¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 29 Affirmed.
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