Docket No. 104679.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

THE PEOPLE OF THE STATE OF IL LI NOIS, Appellee, v. JORGE RODRI GUEZ, A

ppellant

. Opinion filed June 5, 2008.

JUS TICE BURKE delivered the judgment of the cour t, w it h opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Karmeier concur red in the judgment and opinion.

OPINION

At issue in this case is w hether section 5–8–1(a)(1)(d)(i) of the UnifiedCode of Corrections (730 IL CS 5/5–8–1(a)(1)(d)(i ) (We st 2006)), which provides for a 15-y ear sentence enhanceme

nt for any defendant who commits first degree murder “while armed with a firearm,” applies to an unarmed defendant found guilty of first degree murder on a theory of

accountability. The circuit court of Cook County held that subsecti o n (i ) applie d to defe ndant. Th e appell ate court affirmed. 372 Ill. App. 3d 797. For the reasons that follow, we affirm t he judg ment of the

appella te court

.-2- BACKGROUND The facts of this case are not in dispute. On July 29, 20 01, defendant was involved in the murder of Mario Av ila. As par t of a plan, defendant met with Avila under t he premi se of buy

ing drug s, then brought his co-cons pirator, Phonakone Sangat hit, over to Avila ’ s car. Defend ant, who w as unarm ed, stood by whileSangat

hit shot and killed Avila. De

fendant was late r arre sted and c

harge d with fir st degree murder. After trial, a jury found de

fendant guilty

of first degree murder under a theory of

accountability. The tr

ial judge sentenced him to 35 yearsin prison for the murder, plus an ad ditional 15 ye ars purs uant to subsection (i) for c ommitting the offe nse while armed wi th a firear m. Section 5– 8–1(a) o f the Unif ied Code o f Corrections provides, “(a) Except as otherwise provided in the statute defining the offense, a sentence of imprisonment for a felony shall be
a determin ate sent

ence se t by the cour t under th

is Sect ion, accord ing to the following

limitations : (1) for first degree murde r, (a) a term sh all be not less than 20 yea rs and not more than 60 yea

rs, *** * * * (d)(i) if th e person c ommitted the offen se while armedwith a f

ire arm, 15 yea

rs shall be added to the term of im

prisonme nt imposed

by t he court ; (ii) if, during the commission of the offens e, the person personally dischar ged a firearm, 20

yearsshall be added to the term of imprisonment imposedby the court; (iii) if, during the commission of the offense, the p ers on personally dischar ged a firearm that proximatel

y caused great bodily

harm , permanent di sa bi li ty, per man ent disfig urement , or deat

h to another person, 25 yea

rs or up to aterm of natural life shallbe added to the t er m of imprisonment imposed by the court.” 730 I

LCS 5/5–8–1(a) (West 2006).-3- The appellate court affirmed the t rial co urt. I

n respons e to defendant’s argum ent that he should not receive the 15-y ear enhancement

because he was not

in physical possession of a fire arm during the offense, the appellate court stated, “Had the legislature wished to limit the enhancement in section ( i) to persons who persona lly discharge [ sic ] a firea

rm, it would have placed the word ‘p er so na ll y’ in the language of the statute, as it did in subsecti ons (ii) and(iii).” 3 72 Ill . App. 3d a t 800-81. A

ccording to the a

ppellate court, by omitting

the wo rd “personally ” from subsection (i), the legislatureindicatedthat subsection (i) applied not only to those who
are actually ar

med with a firearm during a first deg ree murder, but also to defendants found guilty of the same murder through an
accoun tability th eo ry, even if they w ere unarmed during the offense. This appeal followed.

ANA LYSIS In 1 999, the General Assembly added the 15-, 20-, and 25-y ear firearm senten ce en hancements to section 5–8–1 (sections 5–8–1(a )(1)(d)(i) through (a)(1)(d)(iii)) throug h Public Act 91–404. In the instant case, we must determine whe ther th e legislature i ntend edsubsection (i) to apply to defe ndants guilty of fir st degree murder through an accountability theory, eve

n if they wer

e not armed during the offense. Our

decision will depend on our determination of whether the principles of accountability and common design a

pply to subs ection (i). This is a question of law, which we review de novo

. Loman v. Freeman , No. 104289 (April 17, 2008). We begin our analy sis with a review of the principles of
accoun tability and common design. “Accou ntability is not a cr ime in andof itself but, rather, a mechanism through whic h a criminal conviction may result.” People v. Polloc k , 20 2 Ill. 2d 189, 210 (2002). Section 5–2(c) of the Criminal Code of 1961 provides that “[a] p erson is legally a

ccountable for the conduct of another whe n *** [e]ither before or

during the commission of an offense, and with the intent to

promote or facilitate such commission , he solic its, aids, abets, agree s or attem

pts to aid, such other person in the planning or commission of the offense.” 720 IL CS 5/5–2(c) (West 2006).-4- Our accountability statute does not de viate from the common law ruleof common design. People v. Armstrong , 41 Ill . 2d 390, 399 (1968). The firs t decisio n fr om this court to discuss the commondesign rule was Brennan v. People , 15 Ill. 511 (1854). I n Brennan , we held an accompliceaccoun table for the murder that his codefendant committed. Brennan , 15 Ill. at 516. “I f several persons conspire to do
an unlawful act, *** [t]he act of one of them done in furtherance of the original design, is, in consideration of law, the a ct of all.” Brennan , 15 Ill. at 516. Th rough the year s, the principles of
accoun tability and common design have been utilized by t

his court to hold defendant s involved in the comm ission of a

n offens e accoun table for the criminal conduct of any other codefendant. See Hamilton v. Peopl

e , 113 I ll. 34 (1885) (defendant who took part in a robbery liable for the felony murde

r committed by his co-conspira tors during the robbe

ry ); Peoplev. Tarver , 381 Ill. 411 (1942) (defenda nt who had a rif

le with him when he left a truck that arrived at the scene of a gang confrontation, and w as carry ing the rifle when a sho ot ing occurred, held

to be a member of the gang and responsible for theacts done in carry

ing out the common purpose of the gang , namel y , murder); People v. K

essl er , 57 Ill. 2d 493 (1974) (defenda nt who assiste d in the planning of a burglary , then waited in an automobi l e while his codef

endants committed

a robber

y th at esca

lated into murder, held accountable for burglary and a ttempted murder). In People v. Sangster , 91 Ill. 2d 260 (1982), we addressed the issue of whet her th e prin ciple s of acc ount abili ty and com mon d esign appl y not only to a determination of a de fendant’s culpability f

or a criminal act, but also to a calculation of a defen dant’s se ntence in compliance with sentencing statutes. In Sangster , the defendant was convicted of

murder, armed robbery , and aggravated kidna pping on
an accountability theory

. Sangster , 91 Ill. 2d at 262. The defe ndan t didnot phy sically

particip atein the crimes, but it was undisputed that he was accountable for what occur red. Sangster , 91 Ill. 2d at 262. He
was sentenced to consecutive terms of 40, 30, and 15 y ears pursuant to section 5–8–4(a) of the Unified Code of Corrections, which provided: “The court s hall 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-5- nature of the criminal objective, unless, one of the o ffens es for which defendant was convicted was a Class X o r Class 1 felony and the defen dant inflic ted seve re bodily injury , in which event the cour t may enter se ntences to run
co ns ec ut iv el y. Sentences shall run concurrently un le ss otherwis e specified by the court.” (Emphasi s added.) Ill. Rev. Stat. 1979, ch. 38, par. 1005–8–4(a). Sangster , 91 Ill. 2d at 264. On appeal, the defendant arg ued that principles of

law mandated that the court construe “the defendant,” as used in section 5 –8–4, in his favor, with nothing taken by intendment or implicat io n again st him. Sangster , 91 I

ll. 2d at 264. The ap

pellate c ourt ag

reed wit h the def end ant, stating that it saw “no reason to add after the wor d ‘defendant’ in the phrase, ‘and the defenda

nt inflict ed sever e bodily inj ur y’ the phra se, ‘or s omeone f or whose conduct t

he defe ndant i s accountable.’ ” People v. Sangster , 95 I ll . Ap p. 3d 357, 364-65 (1981). The appellate court then vacated the defendant’s consecutive sentences on the theory that the d efenda nt, who did

not phy sically take part in the crime s for which he was sentenced, did not “inflict
severe bodily

injury,” as required by

the sentencing statute. Sangster , 95 Ill. App. 3d at 364-65. We reversed

the appellate court. Sangster , 91 I ll. 2d at 26 6. We held that , at the time the legislature enacted the consecutivesentencing statute, theaccountability statute had be en interpreted

as meani ng: “ ‘where one

aids anot her in the planning or commission of
an offense, he is legally

accountable for the conduct of the per son he aids; andthat

the word “conduct” encompasses any criminal act done in furtherance of

the planned and intended act.’ ” Sangster , 91 I ll. 2d at 265, q uoti ng Kessler , 57 Ill. 2d at 497. We held that the legislature must be presumed to have known that the accountability statute ha d been so construed whenit

enacted the consecutive-sentencing statute, and, therefore, the defend ant was accoun table fo r the fa ct that his accomplices inflicted seve r e bodily injury upon their

victims. Sangster , 91 I ll. 2d at 265. We further held, “[h]ad the General Assembly intended that the consecutive senten cing provisions be inapplic able

to a defendant found guilty under [a theory of
acc ounta bilit y] , it would have been a

simple matter to provide for an exception as it did in section 9–1(b)(6)(a) of the Criminal Code,”-6- which p ro vi de s t ha t a de fe nd an t f ou nd gu il ty o f m ur de r m ay b e sentenced to death if “the murdered individual was actually killed by the defendant” (em

ph asis added) (Ill. Rev. Stat. 1979, ch. 38, par. 9–1(b)(6)(a)). Sangster , 91 Ill. 2d at 265-66. In People v. Jordan , 103 Ill. 2d 1 92 (19 84), defendant Rowe phy sically

r es trained a bysta

nder while his accomplice killed the victim. Jordan , 103 Ill. 2d at 202-03. Rowe was convicted of felony murder on a theory of

accountability. Jordan , 103 Ill. 2d at 202. The trial judge found that the crime Rowe took part in was “bru tal an d heinous”and sentenced him to an extended term of imprisonment pursuant to section 5–5–3.2(b)(2) of the Unified C ode of Cor

rection s. Jordan , 103 Ill. 2d at 203. Section 5–5–3.2(b)( 2) author ized a trial judge to impose an extended-term sentence “[w]hen a de fendant

is convictedof any

felony and the c ourt f

inds that the offense was accompanied

by e xceptiona lly brutal or heinous behavior indicative of wanton cruelty”

(Ill. Rev. Stat. 1979, ch. 38, par

. 1005–5–3.2(b) ( 2)). Jordan , 103 Ill. 2d at 214. The appellate cour t affirmed Rowe’s sentence. Jordan , 103 Ill. 2d at 202. Before this court, Rowe argued tha t the p lain language of the sentencing statute provided that the defendant himself, and not one for whose conduct heis responsible, must have engaged in the brutal
or heinous behavior. Jordan , 103 Ill. 2d at 214. Rowe then claimed that his perso nal c onduc t, whi ch was l imit ed to r estra inin g a bystander, wa s not brutal or heinous. Jordan , 103 Ill. 2d at 214. We rejected Rowe’s a

rgumen t and aff irmed the appella te court

. Jordan , 103 I

ll. 2d at 21 5. Apply

ing the r easoning set forth in Sangster , we held that the legislature, when it enacted section 5–3–3.2(b)(2), presuma

bly knew tha t th e a ccountability statute had been in terp reted to hold all defendants legally accountable for the conduct of a ll other defendants participating in a crime, and tha t “conduct” encompa ss e d any criminal act done in furtherance of the plannedact. Jordan , 103 Ill. 2d at 214. We further

noted that section 5–3–3.2(b)(2) contained no lan guage providing that the de fendant himself commit th e b rutal or heinous acts in order to be eligible for extend ed- termsentencing. Jordan , 1 03 Ill . 2 d a t 2 15 . A cc or di ng ly,
we held that

a n exten ded-term sentence pursuant to section 5–3–3.2(b)(2) may

be imposed upon a

defendant found guilty

on an accountability theory

. Jordan , 103 Ill. 2d at 215.-7- The State ar

gues tha t we must apply the rea soning of Sangster and Jordan to the instant case. Accordin g to the State, the legislature enacted subsecti on (i) wit

h the know ledge t

hat “the accoun tability statute hadbeen interpre

ted to hold

all defe ndants le gally

accoun table for the conduct of all other defendants part icipati ng in a crime, and that ‘conduc t’ e ncompassed any criminal act done in furtherance of the planned act.” See Jordan , 103 Ill. 2d a t 214. Thus , the State argue s, it must be presumed that

the legislature intended subsection (i) to apply

to all cod

efenda nts fou nd accountable for a first degr ee murder when any one

of them committed the offense while armed with a fir earm. Defendant

argue s that Sangster

and Jordan are not a

pplicabl e to the instant c ase because the statutes at issue in those cases wer e different from subsection (i). Defendant contends that the statutes in Sangster and Jordan “altered a defendant’s sentence based on the overall harm ca used by the offe nse”; specif

i cally, whethe

r brutal or heinous conduct wa s commi tted or whether severe bodily injury occured

. Jordan , 103 I

ll. 2d at 21 4-15; Sangster , 91 Ill. 2d at 264. Defendant

contends that, in contrast, subsection (i) “focuses on one particular po te nt ia l i ns tr um en ta li ty o f the crime and the personal conduct of the armed individual.” Thus, a ccordi ng to defendant , subsection (i) involv es a more specific purpose and punishment

than the statutes at issue in Sangster and Jordan

. We ag ree with

the State and find t

hat the r easoning behin d ou r decisions in Sangster

and Jordan applies to the instant case. When a defendant aids or abets another

in committing

a crime, he is
accoun table and m aybe punished for any criminal act any of his codefendant

had done in furtherance of the crime, w hether that act was inflicting severe bodily injury , committing a brutal and heinous fe lo ny, or being

armed wi th a firearm. See

People v. Macias , 371 Ill. App. 3d 632 (2007) (r elying o n Sangster , appellate court applied subsection (i) to unarmed defendant who ordered the murder of victim). See also Tarver , 381 Ill. at 416 (“[a] shot fired by one of the defenda nts *** was a

shot fired by all and

all of them must answer for the result”); People v. Freeman , 101 Ill. App. 3d 1014, 1017 (1981) (unarmed defendant who participated wi th an armed defendant in a beating found through principles of accountability to be “armed

with a dangerous weapon” a

nd therefore guilty

of armed violence).-8- Applying the reasoning of Sangster and Jo rdan to the instant case, we must pr

esume tha

t the legislature

was awa

re th at t he
accoun tability statute ha

d been int

e rpret ed to hold that when a defendant a ids or a bets anot

her in co mmitting a

crime he

is accountable, an d m ay b e p un is he d, fo r a ny act of his codefendant done in furtherance of the cr im e. Ac co rd in gl y, just as Sangster held that “the defendant,” as used in section 5–8–4, includes “someone for whose conduct t he defe ndant is acc ountable, we now hold that “the person,” as used in subsection (i), includes “someo ne for w hose conduct the per son is accountable.” Therefore, we find that subsection (i) applies to defendant because he aid ed and abetted Sanagt hit in the first degree murder of Avila, wh ich rend ered him
accoun table for all of Sangathit’s criminal acts done in furthera nce of that crim e, includ ing being arme d with a fi rearm. Further support for our c onclusion

can be f ound in the contr ast in statutory lang uag e tha t exi sts be tween subsection (i) and sections 5–8–1(a)(1)(d)(ii) and 5–8–1(a)(1) (d)(iii). Subsections (ii) and (i i i) provide that 20- and 25-year sentence enhanc ements shall apply to the person who “personally

discharged”
a firearm during a first degree murder. 720 I

LCS 5/5–8–1(a)(1)(d)(ii), (a)(1) (d)(iii) (West 2006). The appellate court reaso ned that t

his langua ge limited the applicat ion of subsection s (ii) and (iii) only to those who act ually di scharge d a fir earm du ring a first degree murder andnot to thei rcodefend ants w ho did not di scha

rge a fir earm . We agree. In both Sangste r and Jordan , we notedthat neither of the statutes at issue pro vided an e

xception to

its a pplicati on to acc ountabilit y defenda nts thro ugh limiting language such a s is found in section 9–1(b )(6)(a

)(i) of the Criminal Code , which r

estrictsthe deat

h penalty to only those who

“actua lly k illed” the victim (72 0 IL

CS 5/9–1(b) (6)(a) (i) (West 2006)). Sangster , 91 Ill. 2d at 265-6 6; Jordan , 103 Ill . 2d at 2 15. Thus, we held in Sangster and Jordan that the sentencing statutes were applicable to all codefendants if one of them met the crite ria of the sentencing statute. Sangster , 91 Ill. 2d at 265- 66; Jordan , 103 Ill. 2d

at 215. In subsections (ii) and (iii), howeve r, the limiting w ord “personally ” is used. We hold th at the t erm “personally,”

like “actually”

as used in section 9–1(b)(6)(a)(i), insulates subsections (ii) and (iii) f rom the application of the-9- principles of accountability a nd c ommo n design . In c ontrast, subsection (i) contains no such limiting language and applies not only to those who are actually armed, but also to those who are
accoun table for the criminal actions of others who areactually ar med. Fina lly, we note that the intent of the leg islature in enacting section 5–8–1(a) has been codified in section 33A–1 of the Criminal Code, which was enacted in Public Act 91–404 with section 5–8–1(a). Section 33A–1(b)(1), entitled “Legislative In tent,” provides : “In order to deter the use of firearms in the commission of
a felony offense , the General Ass embly deems it approp

riate for a grea ter pena lty t o be imposed when a f

irearm i s used or discharged

in the commission

of an off ense than the p enalty imposed for using other ty pes of weaponsand for t

he pena lty to increa se on more

serious o ffense s.” 720 I LCS 5/33A–1(b)(1) (West 2006). Our decision today comports with this stated intent beca use i t provides an incen

tive for a would-be criminal to disasso ciate him self from someone planning onbeing armed while committing an offense. Such disassociation would deprive the armed individual of the aid or assistance that the unarmed person might otherwise provide. As such, the crime is less likely to occur , and the use of firearms is deterred.

CONCLUSION For the foregoing reasons, we affirm the judgment

of the ap pellate court.
Appellate court judgment affirmed.