2023 IL App (1st) 220958-U

No. 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,

 Plaintiff-Appellee,

v. 

ROSALIO GALLEGOS-MORENO,

 Defendant-Appellant. 

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Appeal from the

Circuit Court of

Cook County 

No. 18 CR 6125

Honorable 

Ursula Walowski, 

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.
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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.