No. 2--00--0099

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS	

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE OF    ) Appeal from the Circuit Court

ILLINOIS,                     ) of Kane County.

                              )

	Plaintiff-Appellee,      ) 

                              )      

v.                            ) No. 98--CF--535         

                              ) 

ARMANDO AMAYA,                ) Honorable                  

                              ) Donald C. Hudson,

	Defendant-Appellant.     ) Judge, Presiding.

_________________________________________________________________

	JUSTICE McLAREN delivered the opinion of the court:

	The defendant, Armando Amaya, appeals his convictions of and

sentences for attempted murder, first-degree murder, and aggravated

discharge of a firearm after three people were shot, one fatally,

at an apartment building in Elgin.  We affirm in part and vacate in

part.			

	On April 28, 1998, the defendant was charged in a six-count

indictment with two counts of first-degree murder in that the

defendant shot Jermaine Lambert with the intention of killing him

(720 ILCS 5/9--1(a)(1) (West 1996)) and that the defendant shot

Lambert knowing such act created a strong probability of death or

great bodily harm (720 ILCS 5/9--1(a)(2) (West 1996)); two counts

of attempted murder (720 ILCS 5/8--4(a) (West 1996)) in that the

defendant shot and intended to kill Alonzo Matthews and Tara

Harris; two counts of aggravated battery with a firearm (720 ILCS

5/12--4.2(a)(1) (West 1996)) in that the defendant committed a battery by means of discharging a firearm and shototing Matthews and

Harris; and one count of aggravated discharge of a firearm (720

ILCS 5/24--1.2(a)(2) (West 1996)) in that the defendant knowingly

discharged a firearm in the direction of a person.

	The evidence at trial revealed the following.  One of the

victims, Alonzo Matthews, testified that he was visiting a friend

at an apartment at 309 New York Street in Aurora, Illinois, on

October 29, 1997, and, as he listened to some girls argue outside

the apartment building, he felt someone creep up behind him.  A

"Mexican" man, 5 feet 8 inches to 5 feet 9 inches tall, 140 to 145

pounds, was dressed in black with a hood on his head and came from

the direction of Lincoln Street.  Matthews saw the man for only two

seconds before the man shot Matthews in the stomach.  The shooter’s

gun was chrome or black, a revolver or an "automatic," and had a

wheel-like chamber.  Matthews underwent surgery and remained in the

hospital for nine days.  Matthews admitted that he was on probation

in Wisconsin for a drug crime, but he denied being a gang member

and did not know why anyone would want to shoot him.  The parties

stipulated that at the hospital Matthews told a police officer that

he could recognize the shooter.  During cross-examination Matthews

stated that he did not see the shooter in the courtroom. 

	The other surviving victim, Tara Harris, testified that on

October 29, 1997, she was taking her daughter's diaper to the

Dumpster on the side of her apartment at 309 New York Street in

Aurora, Illinois, when she stopped to watch some girls arguing.  A

"Mexican" or "Spanish" man, 5 feet 5 inches or 5 feet 6 inches

tall, in his late teens or early 20s, approached the area from the Lincoln Street end of the building.  His hands were in his pockets

and he wore a jacket with a hood.  The hood covered the man’s head

but not his face.  When Harris turned away, she heard two gun shots

but did not see a gun.  Harris had been shot in the back but did

not realize it until she was back in her apartment.  She blacked

out and later underwent surgery and stayed in the hospital for nine

days.  The bullet was still in Harris's back at the time she

testified.  Harris admitted that at the time of trial she was on

probation for a drug crime, but she denied being a gang member and

did not know why anyone would want to shoot her. 

	Shayla Johnson testified that she also was watching the girls

argue outside the New York Street apartment building on the night

in question when she saw the defendant come from the direction of

Lincoln Street.  The defendant wore black or navy blue, was 5 feet

4 inches tall, and weighed 130 to 140 pounds.  The defendant

approached the group of girls, bumped into a woman, pushed her out

of the way, walked three or four more steps, and started to shoot. 

Handling the weapon "wildly," the defendant shot five or six times

with what Shayla thought was a revolver.  Shayla stated that she

got a good look at the shooter and recognized him as a man known as

"Scarecrow," whom she had seen five or six times before the

shooting.  Shayla ran from the shooting and did not speak to the

police officers at the scene because she did not want to get

involved and did not think anyone had been shot.  Earlier that

evening, as Shayla walked toward the apartment building to meet

some friends, she saw the defendant and two other Hispanic men in

a white, four-door Celebrity or Century with a red stripe.  Two of the car’s occupants hung out of the car windows yelling "King

love," "GDK," and "Kings rule."

	Shayla stated that, less then two months later, on December

19, 1997, she spoke to the Aurora police about the shooting while

she was at the police station regarding an unrelated incident.  On

February 4, 1998, Shayla identified the defendant as the shooter in

a lineup and admitted speaking with her friend, Nicole Pearson,

another witness, about the incident.  Shayla admitted that she had

charges for theft and other offenses pending against her and was

presently in custody after being arrested for failing to appear in

court. 

	Nicole Pearson testified that on the evening of October 29,

1997, she argued with some girls on the side of the apartment

building in question.  When the argument ended, a short, teenage Hispanic

"MexicNAan" man, dressed in black and wearing a black hat, approached

from Lincoln Street, carrying a "big gun."  Pearson identified that

man as the defendant.  The defendant fired the gun, and the crowd

scattered.  The defendant had difficulty handling the gun.  Pearson

stated that the defendant pointed the gun at her but did not fire

because she was on the ground.  The defendant moved away and

continued to shoot, and Pearson stood up and ran away.  Pearson

stated that she had seen the defendant before near a taco

restaurant and knew his name as "Scarecrow."  Earlier that evening,

she saw the defendant in a white car with two other men but did not

hear them say anything.

	Pearson explained that at the February 1998 lineup she did not

think the defendant was the shooter because he had gained weight since the shooting.  Pearson also told the officers that she was

hesitant to testify because she was afraid that the defendant would

kill her.  Later Pearson identified the defendant to the police as

being present during the shooting and in the white car that

evening, but not as the shooter.  Still later, after discussing the

matter with the police after the lineup, Pearson identified the

defendant as the shooter.  Pearson admitted that her friend, Shayla

Johnson, told Pearson that she (Shayla) believed that the defendant

was the shooter and that Shayla told Pearson that the defendant's

nickname was "Scarecrow."  But Pearson, who lived with Shayla

Johnson at the time of the shooting, denied speaking with Shayla

about the incident before speaking with the police.  Pearson

admitted that she had prior convictions of retail theft, resisting

a peace officer, disorderly conduct, and criminal trespass and had

cases pending for mob action and battery.  Pearson denied being a

gang member but admitted that she associated with members of the

Gangster Disciple gang, wore Gangster Disciple colors, and knew

that she was in Gangster Disciple territory the night of the

shooting.  Pearson also stated that one of the victims, Lambert,

was her friend.    

	William McCalister testified that he saw a man outside the

apartment building just before the shooting who wore dark clothing

with a hood.  McCalister did not see a gun but heard gunshots a few

minutes later.  McCalister admitted that he had a theft charge

pending at the time of trial.  

	Tracy Johnson testified that just before the shooting he was

drinking alcohol with his friends when he saw three Hispanic men in a white Chevrolet Celebrity drive by the New York Street apartment

building two or three times.  The men in the Chevy made gang signs

that were insulting to Gangster Disciples.  Later, Tracy heard

three gunshots and then saw the three men that were in the

Celebrity run from the area of the shots, cross the street, and get

into the same white Celebrity that was parked at the Lincoln

Laundry on Lincoln Street.  At approximately 10:30 p.m., Tracy saw

the men being stopped by the police.  Tracy then told the police

what he knew and gave a taped statement at 11:50 p.m.  Tracy

admitted that, both before and after the incident, he drank a pint

of gin and some beer with his friends that evening and that he

previously received substance abuse treatment.  In addition, Tracy

admitted that he had a prior conviction of a felony drug charge and

convictions of several residential burglaries, burglary, attempted

burglary, and retail theft. 

	Aurora police officer Scott Wolters testified that he stopped

the white Celebrity that evening at approximately 10:30 p.m.  The

defendant sat in the front passenger seat wearing faded blue jeans

and a hooded overcoat with a black hooded sweatshirt.  Romero

Sandoval was also in the car wearing a dark Nike hooded pullover

and a black leather jacket.  The third man in the car was George

Gamboa.  Wolters found no weapons or ammunition either in the

vehicle or on any of the men in the car.  

	Officer Mike Doerzaph testified that Tracy reported that he

had seen the three men who had been stopped running from the scene

of the shooting.  

	Aurora police sergeant Mike Langston, an expert in gang

activity, testified that the defendant and the two others who were

arrested were members of the Latin Kings gang and that the

defendant's nickname was "Scarecrow."  The Latin Kings were rivals

of the Gangster Disciples; however, none of the victims, nor Shayla

Johnson or Nicole Pearson, was a  member of any gang.  The shooting

occurred in Gangster Disciple gang territory.  The Lincoln Laundry,

the place where the white Celebrity was parked during the shooting,

was located on the edge of Gangster Disciple territory.  The phrase

"King love" showed respect for the Latin Kings, and "GDK" stood for

"Gangster Disciple Killer."  Langston added that gang members

commonly used getaway drivers and lookouts when entering rival gang

territory, since it was risky to enter that territory on foot.

	Aurora police officer James Fancsali testified that, when

Tracy Johnson gave his statement to the police the evening of the

shooting, he did not appear to be intoxicated and had no odor of

alcoholic beverages.  In February 1998, Shayla Johnson identified

the defendant in a lineup as the shooter, after first stating that

the defendant was not the shooter and then stating that he was

present at the shooting but was not the shooter. 

	Aurora police officer Jeffrey Sauer corroborated Fancsali's

testimony regarding Pearson's lineup statements.  Pearson told the

officers that the shooter was "skinnier" and lighter than the

defendant. 

	Aurora police officer Andrew Hilgenberg testified that, while

on patrol on October 29, 1997, he was dispatched to the apartment

building at 309 East New York Street to secure the inside of a crime scene at 309 East New York Street.  When Officer Hilgenberg 

arrived at approximately 8:45 p.m., MathewsMatthews, who appeared to have

been shot, was in front of the apartment building.  The parking lot

area was illuminated.  Hilgenberg then entered Tara Harris's

apartment and spoke with her.  Harris also had been shot.  Jermaine

Lambert was lying on his back in Harris's kitchen in a pool of

blood.  Lambert appeared to be breathing but was pronounced dead at

9:03 p.m. by a paramedic.   

	Evidence technician Stan Kahle testified that he found

clothing in the white Chevy Celebrity but did not collect the

clothing for evidence and did not find any weapons or ammunition. 

	The parties stipulated that a forensic pathologist would

testify that Lambert's autopsy would reveal that Lambert received

a single, penetrating gunshot wound to the chest that was

consistent with the barrel of the weapon being placed directly on

the body.  The gunshot wound caused Lambert's death, the bullet

having penetrated through the heart and right lung. 

	Over defense counsel's objection, the trial court included

instructions on the principles of accountability.  After

deliberations, the jury found the defendant guilty of first-degree

murder (bodily harm) of Lambert, attempted murder of Harris and

MathewsMatthews, aggravated battery with a firearm as to both Harris and

MathewsMatthews, and aggravated discharge of a firearm.  The trial court

denied the defendant's posttrial motion.  Regarding sentencing, the

State conceded and the trial court agreed that the aggravated

battery convictions merged with the attempted murder convictions. 

The State urged the trial court to impose consecutive sentences based on section 5--8--4(a) of the Unified Code of Corrections

(Code) (730 ILCS 5/5--8--4(a) (West 1996)), seeking a finding that

the defendant committed a Class X felony and inflicted severe

bodily injury.  Defense counsel objected to the imposition of

consecutive sentences, arguing that the State failed to present

evidence at sentencing regarding the issue of severe bodily injury. 

	The trial court sentenced the defendant to 40 years'

imprisonment for the first-degree murder conviction, 10 and 12

years' imprisonment for the convictions of the attempted murder of

Harris and Lambert, respectively, and 9 years' imprisonment for the

aggravated discharge of a firearm conviction.  The court ordered

the sentences for the murder and attempted murder convictions to

run consecutively for a total of 62 years' imprisonment and the

sentence for aggravated discharge of a firearm to run concurrently 

with the other sentences.  The court based its decision to impose

consecutive sentences on its findings that the defendant had

committed a Class X felony, that the offenses were part of a single

course of conduct with no substantial change in the nature of the

criminal objective, and that defendant inflicted severe bodily

injury in the murder and attempted murder offenses.  The trial

court subsequently denied the defendant's motion to reconsider the

sentences, and the defendant filed this timely appeal.  

	On appeal, the defendant first argues that he is entitled to

a new trial because the trial court erroneously instructed the jury

regarding the accountability theory.  In the alternative, defendant

asserts that there was insufficient evidence to support a guilty

verdict on a theory of accountability because the evidence supported a guilty verdict based only on the defendant's acting as

a principal.  The State responds that there was sufficient evidence

to warrant the accountability instructions, there was sufficient

evidence to support a guilty verdict on the theory of

accountability, and that, even if the instruction was erroneous, it

was harmless error because there was overwhelming evidence that the

defendant was guilty as a principal.  

	It is well settled that a defendant's claim of improper jury

instructions is reviewed under a harmless-error analysis.  People v. Dennis, 181 Ill. 2d 87, 95 (1998).  That is, improper jury instructions will not warrant a new trial unless the result of the

trial would have been different had the jury been instructed

properly.  People v. Pena, 317 Ill. App. 3d 312, 319 (2000).  For example, when a jury is improperly instructed regarding the

principles of accountability, a new trial is not warranted if the

evidence is sufficient to find the defendant guilty beyond a

reasonable doubt as a principal.  Pena, 317 Ill. App. 3d at 319.

	In this case, there was ample evidence to support a guilty

verdict based on the defendant's acting as a principal.  There was

uncontroverted evidence that, just prior to the shooting, the

defendant was riding in a car with two other men, yelling insults

and making insulting gestures at a rival gang, and that the

defendant and his cohorts were members of the Latin Kings, rivals

of the Gangster Disciples.  Four witnesses, including both

surviving victims, testified that a Hispanic or Mexican male who

wore dark clothes approached the crowd outside the apartment

building from Lincoln Street and shot at the crowd.  Two women, Shayla Johnson and Nicole Pearson, who were present at the scene of

the shooting, identified the defendant as the man who approached

and fired a gun into the crowd.  It was uncontroverted that three

people were shot, one fatally, and that the shooting occurred in

territory "belonging" to the defendant's rivals, the Gangster

Disciples.  Another witness, Tracy Johnson, testified that after he

heard shots he saw three Hispanic men run from the scene of the

shooting back to a white Chevy Celebrity that was parked just

outside Gangster Disciple territory.  Considering this evidence, we

determine that there was ample evidence to find the defendant

guilty beyond a reasonable doubt as a principal.  Therefore, even

if there was not enough evidence to warrant instructing the jury on

the principles of accountability, the error was harmless and a new

trial is not required.  See People v. Rhodes, 243 Ill. App. 3d 701, 706 (1993). 

	Next, the defendant contends that his conviction of the aggravated

discharge of a firearm was carved out of the same physical acts as

the convictions of first degree murder and attempted murder.  Thus,

the defendant argues that his conviction of aggravated discharge of

a firearm must be vacated under the one-act, one-crime doctrine. 

See People v. King, 66 Ill. 2d 551, 559-66 (1977). 

	After considering a similar argument in People v. Crespo, No. 86556 (February 16, 2001), our supreme court recently held that the

defendant's conduct of stabbing a victim three times constituted

only one single act and did not support multiple convictions.  The

court stated that, although the conduct could have supported two

separate convictions, one forof aggravated battery and another forof armed violence, the State did not differentiate between the stab

wounds and did not apportion them to separate offenses either in

the charging instrument or to the jury at trial.  Crespo, slip op. at 6-7.  Therefore, the State was precluded from treating the

defendant's conduct as multiple acts supporting multiple

convictions.  Crespo, slip op. at 8.

	Crespo controls the issue presented to us here.  In this case, the charging instrument indicates that the State intended to treat

the conduct of the defendant as a conglomerate of three gunshots. 

The indictment did not differentiate between the three gunshots

that actually struck the victims and other shots that were fired by

the defendant without striking anyone. Rather, the aggravated

discharge of a firearm count charged the defendant with the same

conduct as the other counts but under a different theory of

culpability without distinguishing between the three shots that

struck the victims and any other shots the defendant may have

fired.

	Further, at trial the prosecutor presented the case as

involving a conglomerate of three shots.  Although at least one

witness testified that he heard four or five shots, the prosecutor,

during closing arguments, spoke only of the three shots that struck

the victims.  He did not discuss the other shots that could have

supported a separate conviction of aggravated discharge of a

firearm.  The prosecutor never argued that some of the gunshots

would be sufficient to sustain a conviction of aggravated discharge

of a firearm and that other, separate shots would be sufficient to

sustain a conviction of first-degree murder and attempted murder.  Since the State failed to apportion the gunshots among the two

charges, it cannot do so now on appeal.  Crespo, slip op. at 8.  Further, because aggravated discharge of a firearm is a less

serious offense than first-degree murder and attempted murder, the

defendant's conviction of aggravated discharge of a firearm must be

vacated.  See People v. Milton, 309 Ill. App. 3d 863, 868 (1999). 

	Lastly, the defendant argues that the imposition of

consecutive sentences violated his rights under the due process

clause of the United States Constitution (U.S. Const., amend. XIV)

as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  This issue was not raised in the

trial court below; however, we will review it as plain error

because it affects a fundamental right.  See People v. Keene, 296 Ill. App. 3d 183, 186 (1998).

	In Apprendi, the United States Supreme Court found unconstitutional a New Jersey "hate crime" statute allowing the

imposition of an extended-term sentence if the trial court found by

a preponderance of the evidence that, when committing the offense

at issue, the defendant acted with a racially biased purpose.  The

Supreme Court held that, "[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt."  Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

	In sentencing the defendant in this case, the trial judge

found that the defendant had been convicted of a Class X felony, no

substantial change occurred in the nature of the criminal objective, and the defendant had inflicted severe bodily injury. 

The trial court ordered the defendant's sentences to be served

consecutively under section 5--8--4(a) of the Code (730 ILCS 5/5--

8--4(a) (West 1996)).  Relying on Apprendi, the defendant argues that section 5--8--4(a) is unconstitutional because it allows a

trial court to make factual findings--in this case, a finding that

the defendant inflicted severe bodily injury--that increase the

permissible range of penalties by requiring the defendant's

sentences to run consecutively.  The State argues that Apprendi does not apply to section 5--8--4(a) of the Code because that

section does not authorize the imposition of a sentence that is

beyond the prescribed statutory maximum for any particular offense. 

Rather, the State asserts, an order that multiple sentences run

consecutively pursuant to section 5--8--4(a) affects only the

manner in which the sentences will be served, not the length of

those sentences.

	Section 5-8-4(a) provides, in relevant part, as follows:

	"The court shall not impose consecutive sentences for offenses

which were committed as part of a single course of conduct

during which there was no substantial change in the nature of

the criminal objective, unless, one of the offenses for which 

defendant was convicted was a Class X or Class 1 felony and

the defendant inflicted severe bodily injury, *** in which

event the court shall enter sentences to run consecutively." 

730 ILCS 5/5--8--4(a)(West 1996).  

	We agree with the State that Apprendi was not violated here.  The imposition of consecutive sentences does not increase the penalty for a crime beyond the prescribed statutory maximum. 

Rather, it only determines the manner in which the sentence for

each individual offense is to be served.  People v. Primm, 319 Ill. App. 3d 411 (2000).  Our supreme court has characterized

consecutive sentences as " 'sentences following in a train,

succeeding one another in a regular order, with an uninterrupted

course or succession, and having no interval or break.'

[Citation.]" (Emphasis omitted.)  Thomas v. Greer, 143 Ill. 2d 271, 278 (1991).  In other words, connecting the several individual

freight cars of a train together does not increase the size of each

individual freight car.  Thus, for  purposes of an Apprendi analysis, the penalty for a crime is not increased when sentences

are ordered to be served consecutively under section 5--8--4(a) of

the Code based on severe bodily injury. People v. Sutherland, 317 Ill. App. 3d 1117, 1131 (2000).

	We understand that the Appellate Court, First District, has

held otherwise in People v. Clifton, Nos. 1-98-2126, 1-98-2384 cons., slip op. at 54 (September 29, 2000), and People v. Carney, 317 Ill. App. 3d 806 (2000).  However, we respectfully disagree

with these decisions.  These courts based their decisions on the

statement made in Apprendi that "the relevant inquiry is not one of form" (Apprendi, 530 U.S. at 494, 147 L. Ed. 2d at 457, 120 S. Ct. at 2365) but of the effect of the required finding and that, since

a finding of severe bodily injury increased the sentence for a

single course of conduct, that finding had to be made by a fact

finder and not the court.  Carney, 317 Ill. App. 3d at 812-13; Clifton, slip op. at 54.

	This reasoning expands the holding of Apprendi beyond its scope.  The statutory scheme invalidated in Apprendi permitted a sentence to be extended past the maximum permitted by statute upon a finding by the trial court that the defendant acted with a

racially biased purpose.  In this case, the defendant's sentence

was not extended but was ordered to be served consecutively, and

the defendant's mens rea was not at issue.  Rather, the imposition of consecutive sentences was imposed after a finding that the

defendant inflicted severe bodily injury.  Thus, we decline to

follow Carney and Clifton by expanding the holding of Apprendi here.  

	Further, even if an Apprendi violation occurred here, the error is harmless beyond a reasonable doubt.  The facts were

uncontroverted that in the two attempted murder offenses the

defendant shot one victim in the stomach and another in the back. 

Both victims required surgery and a lengthy hospital stay and the

bullet remained in one victim at the time of trial.  Therefore, no

reasonable juror, having already found the defendant guilty of the

offenses charged, could have found that the defendant did not

inflict severe bodily injury and, thus, the outcome would not have

been different if a jury had decided this issue.  See People v. Johnson, 149 Ill. 2d 118, 159 (1992) (supreme court determined that a gunshot wound to the shoulder constituted severe bodily injury); Primm, 319 Ill. App. 3d at 427 (appellate court held that gunshot to the thigh constituted severe bodily injury).  Thus, we will not

vacate the imposition of consecutive sentences. 

	The judgment of the circuit court of Kane County is affirmed

in part and vacated in part.	

	Affirmed in part and vacated in part.

	GEIGER and GROMETER, JJ., concur.