Docket No. 104679.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JORGE

RODRIGUEZ, Appellant.

Opinion filed June 5, 2008.

JUSTICE BURKE delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,

Garman, and Karmeier concurred in the judgment and opinion.

OPINION

At issue in this case is whether section 5–8–1(a)(1)(d)(i) of the

Unified Code of Corrections (730 ILCS 5/5–8–1(a)(1)(d)(i) (West

2006)), which provides for a 15-year sentence enhancement 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 subsection (i) applied to defendant. The appellate

court affirmed. 372 Ill. App. 3d 797. For the reasons that follow, we

affirm the judgment of the appellate court.
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BACKGROUND

The facts of this case are not in dispute. On July 29, 2001,

defendant was involved in the murder of Mario Avila. As part of a

plan, defendant met with Avila under the premise of buying drugs,

then brought his co-conspirator, Phonakone Sangathit, over to Avila’s

car. Defendant, who was unarmed, stood by while Sangathit shot and

killed Avila. Defendant was later arrested and charged with first

degree murder.

After trial, a jury found defendant guilty of first degree murder

under a theory of accountability. The trial judge sentenced him to 35

years in prison for the murder, plus an additional 15 years pursuant to

subsection (i) for committing the offense while armed with a firearm.

Section 5–8–1(a) of the Unified Code of Corrections provides,

“(a) Except as otherwise provided in the statute defining

the offense, a sentence of imprisonment for a felony shall be

a determinate sentence set by the court under this Section,

according to the following limitations:

(1) for first degree murder,

(a) a term shall be not less than 20 years and not

more than 60 years, ***

* * *

(d)(i) if the person committed the offense while

armed with a firearm, 15 years shall be added to the

term of imprisonment imposed by the court;

(ii) if, during the commission of the offense, the

person personally discharged a firearm, 20 years shall

be added to the term of imprisonment imposed by the

court;

(iii) if, during the commission of the offense, the

person personally discharged a firearm that

proximately caused great bodily harm, permanent

disability, permanent disfigurement, or death to

another person, 25 years or up to a term of natural life

shall be added to the term of imprisonment imposed

by the court.” 730 ILCS 5/5–8–1(a) (West 2006).
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The appellate court affirmed the trial court. In response to

defendant’s argument that he should not receive the 15-year

enhancement because he was not in physical possession of a firearm

during the offense, the appellate court stated, “Had the legislature

wished to limit the enhancement in section (i) to persons who

personally discharge [sic] a firearm, it would have placed the word

‘personally’ in the language of the statute, as it did in subsections (ii)

and (iii).” 372 Ill. App. 3d at 800-81. According to the appellate

court, by omitting the word “personally” from subsection (i), the

legislature indicated that subsection (i) applied not only to those who

are actually armed with a firearm during a first degree murder, but

also to defendants found guilty of the same murder through an

accountability theory, even if they were unarmed during the offense.

This appeal followed.

ANALYSIS

In 1999, the General Assembly added the 15-, 20-, and 25-year

firearm sentence enhancements to section 5–8–1 (sections

5–8–1(a)(1)(d)(i) through (a)(1)(d)(iii)) through Public Act 91–404.

In the instant case, we must determine whether the legislature

intended subsection (i) to apply to defendants guilty of first degree

murder through an accountability theory, even if they were not armed

during the offense. Our decision will depend on our determination of

whether the principles of accountability and common design apply to

subsection (i). This is a question of law, which we review de novo.

Loman v. Freeman, No. 104289 (April 17, 2008).

We begin our analysis with a review of the principles of

accountability and common design. “Accountability is not a crime in

and of itself but, rather, a mechanism through which a criminal

conviction may result.” People v. Pollock, 202 Ill. 2d 189, 210

(2002). Section 5–2(c) of the Criminal Code of 1961 provides that

“[a] person is legally accountable for the conduct of another when

*** [e]ither before or during the commission of an offense, and with

the intent to promote or facilitate such commission, he solicits, aids,

abets, agrees or attempts to aid, such other person in the planning or

commission of the offense.” 720 ILCS 5/5–2(c) (West 2006).
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Our accountability statute does not deviate from the common law

rule of common design. People v. Armstrong, 41 Ill. 2d 390, 399

(1968). The first decision from this court to discuss the commondesign rule wasBrennan v. People, 15 Ill. 511 (1854). In Brennan, we

held an accomplice accountable for the murder that his codefendant

committed. Brennan, 15 Ill. at 516. “If 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 act of all.”

Brennan, 15 Ill. at 516. Through the years, the principles of

accountability and common design have been utilized by this court to

hold defendants involved in the commission of an offense

accountable for the criminal conduct of any other codefendant. See

Hamilton v. People, 113 Ill. 34 (1885) (defendant who took part in a

robbery liable for the felony murder committed by his co-conspirators

during the robbery); People v. Tarver, 381 Ill. 411 (1942) (defendant

who had a rifle with him when he left a truck that arrived at the scene

of a gang confrontation, and was carrying the rifle when a shooting

occurred, held to be a member of the gang and responsible for the acts

done in carrying out the common purpose of the gang, namely,

murder); People v. Kessler, 57 Ill. 2d 493 (1974) (defendant who

assisted in the planning of a burglary, then waited in an automobile

while his codefendants committed a robbery that escalated into

murder, held accountable for burglary and attempted murder).

In People v. Sangster, 91 Ill. 2d 260 (1982), we addressed the

issue of whether the principles of accountability and common design

apply not only to a determination of a defendant’s culpability for a

criminal act, but also to a calculation of a defendant’s sentence in

compliance with sentencing statutes. In Sangster, the defendant was

convicted of murder, armed robbery, and aggravated kidnapping on

an accountability theory. Sangster, 91 Ill. 2d at 262. The defendant

did not physically participate in the crimes, but it was undisputed that

he was accountable for what occurred. Sangster, 91 Ill. 2d at 262. He

was sentenced to consecutive terms of 40, 30, and 15 years pursuant

to section 5–8–4(a) of the Unified Code of Corrections, which

provided:

“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
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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 may enter sentences to run

consecutively. Sentences shall run concurrently unless

otherwise specified by the court.” (Emphasis added.) Ill. Rev.

Stat. 1979, ch. 38, par. 1005–8–4(a).

Sangster, 91 Ill. 2d at 264.

On appeal, the defendant argued 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 implication against

him. Sangster, 91 Ill. 2d at 264. The appellate court agreed with the

defendant, stating that it saw “no reason to add after the word

‘defendant’ in the phrase, ‘and the defendant inflicted severe bodily

injury’ the phrase, ‘or someone for whose conduct the defendant is

accountable.’ ” People v. Sangster, 95 Ill. App. 3d 357, 364-65

(1981). The appellate court then vacated the defendant’s consecutive

sentences on the theory that the defendant, who did not physically

take part in the crimes 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 Ill. 2d at 266. We

held that, at the time the legislature enacted the consecutivesentencing statute, the accountability statute had been interpreted as

meaning: “ ‘where one aids another in the planning or commission of

an offense, he is legally accountable for the conduct of the person he

aids; and that the word “conduct” encompasses any criminal act done

in furtherance of the planned and intended act.’ ” Sangster, 91 Ill. 2d

at 265, quoting Kessler, 57 Ill. 2d at 497. We held that the legislature

must be presumed to have known that the accountability statute had

been so construed when it enacted the consecutive-sentencing statute,

and, therefore, the defendant was accountable for the fact that his

accomplices inflicted severe bodily injury upon their victims.

Sangster, 91 Ill. 2d at 265. We further held, “[h]ad the General

Assembly intended that the consecutive sentencing provisions be

inapplicable to a defendant found guilty under [a theory of

accountability], 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,”
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which provides that a defendant found guilty of murder may be

sentenced to death if “the murdered individual was actually killed by

the defendant” (emphasis 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 192 (1984), defendant Rowe

physically restrained a bystander 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 “brutal and

heinous” and sentenced him to an extended term of imprisonment

pursuant to section 5–5–3.2(b)(2) of the Unified Code of Corrections.

Jordan, 103 Ill. 2d at 203. Section 5–5–3.2(b)(2) authorized a trial

judge to impose an extended-term sentence “[w]hen a defendant is

convicted of any felony and the court finds that the offense was

accompanied by exceptionally 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 court

affirmed Rowe’s sentence. Jordan, 103 Ill. 2d at 202.

Before this court, Rowe argued that the plain language of the

sentencing statute provided that the defendant himself, and not one

for whose conduct he is responsible, must have engaged in the brutal

or heinous behavior. Jordan, 103 Ill. 2d at 214. Rowe then claimed

that his personal conduct, which was limited to restraining a

bystander, was not brutal or heinous. Jordan, 103 Ill. 2d at 214.

We rejected Rowe’s argument and affirmed the appellate court.

Jordan, 103 Ill. 2d at 215. Applying the reasoning set forth in

Sangster, we held that the legislature, when it enacted section

5–3–3.2(b)(2), presumably knew that the accountability statute had

been interpreted to hold all defendants legally accountable for the

conduct of all other defendants participating in a crime, and that

“conduct” encompassed any criminal act done in furtherance of the

planned act. Jordan, 103 Ill. 2d at 214. We further noted that section

5–3–3.2(b)(2) contained no language providing that the defendant

himself commit the brutal or heinous acts in order to be eligible for

extended-term sentencing. Jordan, 103 Ill. 2d at 215. Accordingly,

we held that an extended-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.
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The State argues that we must apply the reasoning of Sangster and

Jordan to the instant case. According to the State, the legislature

enacted subsection (i) with the knowledge that “the accountability

statute had been interpreted to hold all defendants legally accountable

for the conduct of all other defendants participating in a crime, and

that ‘conduct’ encompassed any criminal act done in furtherance of

the planned act.” See Jordan, 103 Ill. 2d at 214. Thus, the State

argues, it must be presumed that the legislature intended subsection

(i) to apply to all codefendants found accountable for a first degree

murder when any one of them committed the offense while armed

with a firearm.

Defendant argues that Sangster and Jordan are not applicable to

the instant case because the statutes at issue in those cases were

different from subsection (i). Defendant contends that the statutes in

Sangster and Jordan “altered a defendant’s sentence based on the

overall harm caused by the offense”; specifically, whether brutal or

heinous conduct was committed or whether severe bodily injury

occured. Jordan, 103 Ill. 2d at 214-15; Sangster, 91 Ill. 2d at 264.

Defendant contends that, in contrast, subsection (i) “focuses on one

particular potential instrumentality of the crime and the personal

conduct of the armed individual.” Thus, according to defendant,

subsection (i) involves a more specific purpose and punishment than

the statutes at issue in Sangster and Jordan.

We agree with the State and find that the reasoning behind our

decisions in Sangster and Jordan applies to the instant case. When a

defendant aids or abets another in committing a crime, he is

accountable and may be punished for any criminal act any of his

codefendant had done in furtherance of the crime, whether that act

was inflicting severe bodily injury, committing a brutal and heinous

felony, or being armed with a firearm. See People v. Macias, 371 Ill.

App. 3d 632 (2007) (relying on 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

defendants *** 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 with an armed defendant in a

beating found through principles of accountability to be “armed with

a dangerous weapon” and therefore guilty of armed violence).
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Applying the reasoning of Sangster and Jordan to the instant

case, we must presume that the legislature was aware that the

accountability statute had been interpreted to hold that when a

defendant aids or abets another in committing a crime he is

accountable, and may be punished, for any act of his codefendant

done in furtherance of the crime. Accordingly, just as Sangster held

that “the defendant,” as used in section 5–8–4, includes “someone for

whose conduct the defendant is accountable, we now hold that “the

person,” as used in subsection (i), includes “someone for whose

conduct the person is accountable.” Therefore, we find that

subsection (i) applies to defendant because he aided and abetted

Sanagthit in the first degree murder of Avila, which rendered him

accountable for all of Sangathit’s criminal acts done in furtherance of

that crime, including being armed with a firearm.

Further support for our conclusion can be found in the contrast in

statutory language that exists between subsection (i) and sections

5–8–1(a)(1)(d)(ii) and 5–8–1(a)(1)(d)(iii).

Subsections (ii) and (iii) provide that 20- and 25-year sentence

enhancements shall apply to the person who “personally discharged”

a firearm during a first degree murder. 720 ILCS 5/5–8–1(a)(1)(d)(ii),

(a)(1)(d)(iii) (West 2006). The appellate court reasoned that this

language limited the application of subsections (ii) and (iii) only to

those who actually discharged a firearm during a first degree murder

and not to their codefendants who did not discharge a firearm. We

agree.

In both Sangster and Jordan, we noted that neither of the statutes

at issue provided an exception to its application to accountability

defendants through limiting language such as is found in section

9–1(b)(6)(a)(i) of the Criminal Code , which restricts the death

penalty to only those who “actually killed” the victim (720 ILCS

5/9–1(b)(6)(a)(i) (West 2006)). Sangster, 91 Ill. 2d at 265-66; Jordan,

103 Ill. 2d at 215. Thus, we held in Sangster and Jordan that the

sentencing statutes were applicable to all codefendants if one of them

met the criteria of the sentencing statute. Sangster, 91 Ill. 2d at 265-

66; Jordan, 103 Ill. 2d at 215. In subsections (ii) and (iii), however,

the limiting word “personally” is used. We hold that the term

“personally,” like “actually” as used in section 9–1(b)(6)(a)(i),

insulates subsections (ii) and (iii) from the application of the
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principles of accountability and common design. In contrast,

subsection (i) contains no such limiting language and applies not only

to those who are actually armed, but also to those who are

accountable for the criminal actions of others who are actually armed.

Finally, we note that the intent of the legislature 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 Intent,”

provides:

“In order to deter the use of firearms in the commission of

a felony offense, the General Assembly deems it appropriate

for a greater penalty to be imposed when a firearm is used or

discharged in the commission of an offense than the penalty

imposed for using other types of weapons and for the penalty

to increase on more serious offenses.” 720 ILCS

5/33A–1(b)(1) (West 2006).

Our decision today comports with this stated intent because it

provides an incentive for a would-be criminal to disassociate himself

from someone planning on being 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 appellate

court.

Appellate court judgment affirmed.