2024 IL App (1st) 232121-U

FOURTH DIVISION

Order filed: March 21, 2024

No. 1-23-2121B 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

by any party 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. 23 MC1 113554

)

)

KAYLA BURGOS, ) Honorable

) David Kelly,

Defendant-Appellant. ) Judge, Presiding.

JUSTICE HOFFMAN delivered the judgment of the court. 

Presiding Justice Rochford concurred in the judgment.

Justice Ocasio dissented in the judgment.

ORDER

¶ 1 Held: The circuit court did not abuse its discretion in denying the defendant pretrial 

release where the circuit court's finding that no condition or combination of 

conditions can mitigate the real and present threat to the safety of the community 

is neither against the manifest weight of the evidence nor an abuse of discretion.
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¶ 2 The defendant, Kayla Burgos, appeals from the circuit court’s order of October 31. 2023, 

denying her pretrial release pursuant to Public Act 101-652, § 10-255 (eff. Jan. 1, 2023). 

Commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act (Act).1

See Pub. Act 102-110 , § 70 (eff. Jan. 1, 2023) . For the reasons which follow, we affirm.

¶ 3 The defendant was arrested on October 29, 2023, and charged with aggravated vehicular 

hijacking and possession of a controlled substance. On October 31, 2023, the State filed a verified 

Petition for Pretrial Detention Hearing. A pretrial detention hearing was held that same day. At 

the detention hearing, the State filed a written proffer followed by an oral proffer, both setting 

forth the following facts:

¶ 4 On October 27, 2023, the victim was sitting in the driver’s seat of his car when three or 

four cars surrounded him. He heard a woman yelling at him to get out of his car and saw the 

defendant walking toward his car door holding a small black handgun. The defendant squeezed 

the gun, activating a green laser sight, and pointed the gun at the victim. The victim opened his 

car door, handed the defendant his keys, and exited his vehicle. The victim watched the defendant 

drive his vehicle away. The victim called the police and reported the incident. On October 29, 

2023, the victim viewed a photo array and positively identified the defendant as the woman that 

pointed a gun at him and took his vehicle.

¶ 5 Prior to the detention hearing, the State served the defendant with two orders of protection 

entered on August 1, 2023, prohibiting her from contacting, threatening, or stalking various named 

individuals. In addition, the State informed the trial court that, at the time of the commission of

1 The Act has been referred to as the “SAFE-T Act” or the “Pretrial Fairness Act.” Neither name 

is official, and neither appears in the Illinois Compiled Statures or the public act.
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the charged offense, the defendant was free on bond in a case charging her with felony fleeing and 

eluding police.

¶ 6 Following the State's proffer, defense counsel made the following proffer in mitigation. 

The defendant is 21 years old, a recent high-school graduate. and working full time in a gas station. 

She has lived her entire life at the same address in Chicago where she would be able to live if 

placed on electronic monitoring. The defendant is a caretaker for her disabled father who suffers 

from a spinal condition. According to defense counsel, the defendant was on pretrial release on a 

charge of aggravated fleeing or attempting to elude a peace officer where she was alleged to have 

blown two stop signs while speeding away from police.

¶ 7 Following the detention hearing, the trial court denied the defendant pretrial release and 

remanded her to the custody of the Cook County sheriff pending trial. In its written order, the 

court found that the State has shown by clear and convincing evidence that: the proof is evident or 

the presumption great that the defendant has committed an eligible offense as listed in 725 ILCS 

5/110-6.1(a)(1)-(7) (West 2024); the defendant poses a real and present threat to the safety of the 

community based on the specific articulable facts in this case, namely that the defendant pointed 

a gun at the victim and stole his vehicle; and that no condition or combination of conditions of 

pretrial release can mitigate the real and present threat posed by the defendant to the safety of the 

community because the defendant is charged with a violent forcible felony and had a pending case 

of aggravated fleeing and eluding the police. This appeal followed.

¶ 8 In her notice of appeal, the defendant argues that the State failed to meet is burden of 

showing by clear and convincing evidence that:
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1) the proof is evident or the presumption great that she has committed the charged 

offense; 

2) no condition or combination of conditions of pretrial release can mitigate the real and 

present threat posed by her to the safety of the community; and

3) she was denied an opportunity for a fair hearing prior to the entry of the order denying 

her pretrial release.

¶ 9 In considering this appeal, this court has reviewed the following documents which the 

defendant and the State of Illinois have submitted pursuant to Illinois Supreme Court Rule 604(h) 

(eff. Oct. 19, 2023):

- defendant’s Notice of Pretrial Fairness Acy Appeal,

- defendant’s supporting record,

- the report of proceedings,

- defendant’s notification that she will not file a supporting memorandum, and

- the State’s memorandum

¶ 10 Pretrial release is governed by article 110 of the Code of Criminal Procedure of 1963 

(Code) (725 ILCS 5/art. 110 (West 2024)). Under that statute, a defendant’s pretrial release may 

only be denied in certain limited situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2024). Upon the 

filing of a petition requesting an order denying the defendant’s pretrial release, the State has the 

burden to prove by clear and convincing evidence that the proof is evident or the presumption great 

that the defendant has committed a qualifying offense, that the defendant’s pretrial release poses a 

real and present threat to the safety of any person or the community and/or that the defendant’s 

pretrial detention is necessary to prevent the defendant’s willful flight to avoid prosecution. 725 

ILCS 5/110-6.1(e),(f) (West 2024). It is also the State’s burden to prove by clear and convincing
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evidence that “no condition or combination of conditions of release would reasonably ensure the 

appearance of the defendant for later hearings or prevent the defendant from being charged with a 

subsequent felony or Class A misdemeanor.” 725 ILCS 5/110-6(a) (West 2024). The trial court 

may order a defendant detained pending trial if the defendant is charged with a qualifying offense, 

and concludes that the defendant poses a real and present threat to the safety of any person or the 

community. 725 ILCS 5/110-6.1(a)(1)-(7) (West 2022).

¶ 11 We are mindful of the fact that several judges in the Appellate Court believe that review of 

a pretrial detention order should be de novo. See: People v. Lee, 2024 IL App (1st) 232137 ¶ 21; 

People v. Saucedo, 2024 IL App (1st) 232020, ¶ 65 (Ellis, J., specially concurring). We disagree. 

As was noted by the majority in Saucedo, the decision to grant or deny pretrial release involves 

proof, or the absence thereof, of three propositions. The first two, whether the proof is evident and 

the presumption is great that the defendant committed the offenses charged and that the defendant 

poses a real and present threat to the safety of any person or persons or the community, are 

questions of fact. Saucedo, 2024 IL App (1st) 232020, ¶¶ 31, 32. The manifest weight standard 

applies to the review of factual determinations made by the trial judge. People v. Finlaw, 2023 IL 

App (4th) 220797, ¶ 55. We believe the third proposition, that no condition or combination of 

conditions can mitigate the real and present threat posed by the defendant, is a matter committed 

to the discretion of the trial judge based on a weighing of several factors to arrive at a decision that 

promotes principals of fundamental fairness and effective judicial administration. Saucedo, 2024 

IL App (1st) 232020, ¶ 36; People v. Reed, 2023 IL App (1st) 231834, ¶31.

¶ 12 The abuse of discretion standard of review was applied to circuit court decisions relating 

to the setting of bond. People v. Simmons, 2019 IL App (1st) 191253, ¶ 9; People v. Johnson, 2019
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IL App (3d) 190582, ¶ 8. We find no reason why the same standard of review should not apply to 

the circuit court’s ultimate decision to either grant or deny pretrial release.

¶ 13 However, using any standard of review, we find no basis to reverse the trial court’s order 

denying the defendant pretrial release. In support of her first argument on appeal that the State 

failed to show by clear and convincing evidence that the proof is evident or the presumption great 

that she has committed the charged offense, the defendant argues that the only description that the 

victim gave to the police was that of “female Hispanic,” the State offered no information regarding 

the procedures followed for the photo array, and the State offered no information of how certain 

the victim was of his identification. One need only review the State’s proffer to conclude that the 

defendant’s argument on this issue lacks merit.

¶ 14 In her third argument, the defendant asserts that she was denied an opportunity for a fair 

hearing prior to the entry of the order denying her pretrial release. A review of the record 

establishes that defense counsel was not in any way constrained in the presentation of her proffer, 

nor is there any basis to assert that the State withheld any documents or statements it relied upon 

in petitioning for pretrial detention. We find that the defendant’s assertion that she was denied an 

opportunity for a fair hearing is not only meritless, it is specious.

¶ 15 Finally, we are left with the defendant’s argument that the State failed to meet its burden 

of showing, by clear and convincing evidence, that no condition or combination of conditions of 

pretrial release can mitigate the real and present threat she poses to the safety of the community. 

In analyzing this argument, we take particular note of the fact that the defendant has not argued 

that the State failed to meet its burden of showing that she poses a real and present threat to the 

safety of the community.
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¶ 16 Whether we would review the trial court’s finding that no condition or combination of 

conditions of pretrial release can mitigate the real and present threat the defendant poses to the 

safety of the community for abuse of discretion, applying a manifest weight standard, or de novo, 

our conclusion would be the same; there is no basis to reverse the trial court’s detention order.

¶ 17 There are cases where the circumstance of the charged offense, the defendant’s alleged 

participation, and the defendant’s status at the time of the offense are, without more, sufficient to 

support a finding that no condition or combination of conditions can mitigate the danger posed by 

the defendant to the community. We believe that this is such a case.

¶ 18 The defendant is charged with a violent crime while armed with a laser-cited handgun 

which she pointed at the victim. She is not charged with a nonviolent crime, a crime of passion, or 

a status offense. She is charged with a premeditated violent offense while armed. At the time of 

the charged offense, the defendant was already on pretrial release. In this case, the trial court went 

further. The report of proceedings reflects that, in determining whether no condition or conditions 

of pretrial release could mitigate the danger posed by the defendant, the trial court specifically 

recounted in detail the facts in mitigation offered by defense counsel and weighed those facts 

against the violent nature of the offense for which the defendant is charged and the fact that, when 

she committed the alleged offense, she was on pretrial release the conditions of which included 

that she not commit any criminal offense. We find nothing in the statute which would require a 

trial court to recite every conceivable condition of pretrial release and then state why those 

conditions would not mitigate the danger posed by a defendant. The only requirement is that the 

trial court state the specific facts supporting its determination which the trial court did in this case.
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¶ 19 Based on the foregoing analysis, we affirm the order of the circuit court detaining the 

defendant and remanding her to the custody of the Cook County sheriff pending trial.

¶ 20 Affirmed.

¶ 21 JUSTICE OCASIO, dissenting: 

¶ 22 The facts proffered at the detention hearing did not provide a basis for concluding that 

home confinement with electronic monitoring would not be an adequate condition of pretrial 

release, the trial court erred by finding that no condition or set of conditions would mitigate the 

threat posed by Burgos to community safety. Accordingly, I respectfully dissent from the judgment 

of the majority.

¶ 23 Under the amended pretrial-release provisions of the Code of Criminal Procedure 

unofficially known as the Pretrial Fairness Act (see 725 ILCS 5/art. 110 (West 2022)), all 

defendants, including those charged with serious and violent offenses, are presumptively entitled 

to pretrial release. 725 ILCS 5/110-2, 110-6.1(e) (West 2022). That presumption can be overcome 

in certain cases, including ones where the defendant is charged with a forcible felony, a term of 

art that encompasses “any *** felony which involves the threat of or infliction of great bodily 

harm or permanent disability or disfigurement.” Id. § 110-6.1(a)(1).

¶ 24 There is no dispute here that Burgos has been charged with a detainable offense. To 

overcome the presumption in favor of release, the State is required to prove three propositions:

“(1) the proof is evident or the presumption great that the defendant has committed 

[a detainable offense], ***

(2) *** the defendant poses a real and present threat to the safety of any person or 

persons or the community, based on the specific articulable facts of the case, *** and
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(3) no condition or combination of conditions [of pretrial release] can mitigate [that 

threat].” Id. § 110-6.1(e). 

The State “bear[s] the burden of proving” each of these propositions “by clear and convincing 

evidence.” Id. That high standard of proof requires evidence that “leaves no reasonable doubt in 

the mind of the trier of fact asto the truth of the proposition in question.” Chaudhary v. Department 

of Human Services, 2023 IL 127712, ¶ 74. The point of requiring clear and convincing evidence 

is to err on the side of caution when unusually significant interests are at stake. See In re D.T., 212 

Ill. 2d 347, 362 (2004) (explaining that the burdened party “shoulders a greater share of the risk of 

an erroneous determination” under the clear-and-convincing standard of proof).

¶ 25 There is not a settled standard for reviewing a determination that the State met its burden 

of proving that no set of release conditions would adequately mitigate whatever safety threat the 

defendant poses. See People v. Lee, 2024 IL App (1st) 232137, ¶ 21 (surveying case law). Some 

cases have treated that determination as a discretionary decision reviewable only for an abuse of 

discretion, which occurs only if the lower court’s decision was arbitrary, fanciful, unreasonable, 

or based on a position that no reasonable person would agree with. E.g. People v. Saucedo, 2024 

IL App (1st) 232020, ¶ 36. Other cases have treated it as a finding of fact that must be affirmed 

unless it is against the manifest weight of the evidence, which is only the case if the opposite 

conclusion is clearly evident or if the finding is unreasonable, arbitrary, or not based on the 

evidence. E.g. People v. Stock, 2023 IL App (1st) 231753, ¶¶ 12, 21. In my view, however, such 

determinations should be reviewed de novo, at least when they do not involve contested questions 

of historical fact. See People v. Whitaker, 2024 IL App (1st) 232009, ¶¶ 80-138 (Ellis, J., 

concurring). 
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¶ 26 Here, the trial court found that the proffered facts of the charged offense showed that 

Burgos posed a threat to the safety of people in the community at large, and Burgos does not 

challenge that finding on appeal. The question, then, is whether the trial court properly found that 

no condition or set of conditions of pretrial release would mitigate that threat.

¶ 27 The trial court noted that Burgos was on pretrial release for aggravated fleeing or 

attempting to elude a peace officer when the charged offense is alleged to have occurred. I agree 

with the trial court that this is significant. One of the mandatory conditions of pretrial release is 

that the defendant “[n]ot violate any criminal statute of any jurisdiction.” 725 ILCS 5/110-10(a)(4) 

(West 2022). By allegedly committing the charged offense while on pretrial release, Burgos 

displayed a willingness to violate the conditions of pretrial release. The nature of the earlier 

charge—running from the police—was consistent with a tendency to disregard her duty to obey 

lawful commands. These facts certainly justify a concern that any condition of release that relied 

on Burgos’s voluntary adherence would not be adequate.

¶ 28 With that in mind, one possible condition of pretrial release is home confinement with 

electronic monitoring. Id. § 110-10(b)(5). For example, the court could order Burgos to stay in her 

home except as necessary to attend work, doctor’s appointments, religious services, and so forth. 

See 730 ILCS 5/5-8A-4(A) (West 2022). Confinement to the home with these designated 

exceptions would seem to mitigate any threat she would pose to public safety if permitted to roam 

the streets at will. Her compliance with the terms of home confinement could be enforced by 

requiring her to wear a device that records and transmits her location, such as a GPS monitor. See 

id. § 5-8A-2(A). At the detention hearing, defense counsel proffered that Burgos had a place to 

live where she could be subjected to electronic monitoring. See 725 ILCS 5/110-6.1(f)(2) (West
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2022) (providing that both the State and the defendant “may present evidence at the hearing by 

way of proffer based upon reliable information”). That proffer went unrebutted, and the State did 

not proffer any information showing that home confinement, enforced by electronic monitoring, 

was not otherwise available or would not be an effective way to mitigate the risk to community 

safety.

¶ 29 Before denying pretrial release, the trial court should “take into account the full 

constellation of conditions at its disposal.” People v. Herrera, 2023 IL App (1st) 231801, ¶ 33. If 

potentially effective release conditions are not available, then that fact should be made part of the 

record. Id. ¶ 35. Even though defense counsel argued that Burgos could be released to home 

confinement with electronic monitoring, the trial court does not appear to have considered home 

confinement when it denied pretrial release. As far as I can tell, the record contains no evidence 

showing that home confinement with electronic monitoring would not be adequate. For that reason, 

I do not believe that the trial court’s finding that the State had not only proven otherwise but done 

so with evidence that was both “clear” and “convincing” can be sustained under any standard of 

review. Accordingly, I would reverse the trial court’s order denying Burgos pretrial release and 

remand for a conditions-of-release hearing. See 725 ILCS 5/110-5 (West 2022).