People v. Lozano
2017 IL App (1st) 142723
| Ill. App. Ct. | 2017Background
- On August 30, 2011, Chicago officers chased and arrested Gilbert Lozano after observing him run and (according to police) toss a loaded 9mm handgun into a yard; officers recovered the gun nearby. Lozano later allegedly admitted membership in the Two‑Six gang and said he carried the gun because of threats from the Latin Kings.
- Police photos showed Lozano with a Three‑Dots tattoo and making a gang sign; a gang expert (Officer Vins) testified Two‑Six is a hierarchical Latino street gang that uses violence to control territory and opined Lozano was a Two‑Six member.
- The State admitted a certified record showing Lozano never had a FOID card. The jury convicted Lozano of (1) unlawful possession of a firearm by a street‑gang member (720 ILCS 5/24‑1.8) and (2) aggravated unlawful use of a weapon (AUUW) for lacking a FOID.
- Lozano moved posttrial arguing insufficiency of evidence (that Two‑Six met the Act’s statutory definition of a “street gang”), unconstitutionality of the gang‑possession statute, and trial counsel ineffectiveness for failing to request statutory jury instructions; the trial court denied relief.
- The Appellate Court reversed the gang‑member firearm conviction, concluding the State did not prove Two‑Six engaged in a statutorily required “course or pattern of criminal activity” (i.e., two or more gang‑related offenses in Illinois with at least one after Jan. 1, 1993, and two within five years). The AUUW conviction was affirmed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Lozano) | Held |
|---|---|---|---|
| Sufficiency — whether Two‑Six met the Act’s definition of a “street gang” (i.e., engaged in a “course or pattern of criminal activity”) | Vins’s expert testimony that Two‑Six is hierarchical and violent (murders, shootings, arson, intimidation) was sufficient for a rational jury to find Two‑Six meets the statutory definition | State failed to prove two or more gang‑related offenses in Illinois with at least one after Jan 1, 1993 and two within five years; evidence on timing and specific offenses was lacking | Reversed — State failed to prove the statutory “course or pattern” element beyond a reasonable doubt, so conviction for unlawful possession by a street‑gang member vacated |
| Constitutionality of §24‑1.8 (facial/other challenges) | Statute constitutional as applied; not argued in detail on appeal | Statute unconstitutional | Not reached — court declined to decide after reversing on sufficiency |
| Trial counsel ineffectiveness / failure to request statutory jury instructions defining “street gang” and “course or pattern” | Court and counsel did not need to give or request those instructions; expert testimony sufficed | Counsel was ineffective for not requesting pattern instructions; alternatively, court should have given them sua sponte | Not reached — court declined to decide after reversing on sufficiency |
| One‑act, one‑crime (whether AUUW conviction must be vacated) | AUUW distinct and supported by evidence (lack of FOID) | AUUW duplicative of gang‑based possession | Not reached on merits; AUUW conviction affirmed because sufficient evidence existed |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
- People v. Cunningham, 212 Ill. 2d 274 (allowing all reasonable inferences in sufficiency review)
- People v. Jamesson, 329 Ill. App. 3d 446 (previous Illinois decision upholding gang‑definition proof based on expert testimony)
- People v. Terrell, 185 Ill. 2d 467 (permitting expert testimony on ultimate issues when trier of fact may accept or reject)
- Richardson v. Chapman, 175 Ill. 2d 98 (authority on use of expert opinion regarding gangs)
- People v. McCoy, 207 Ill. 2d 352 (bench trial judges presumed to know applicable law; contrast with jury instruction responsibility)
- People v. Delgado, 376 Ill. App. 3d 307 (trial court’s duty to instruct jury on elements and burden of proof)
- People v. White, 2011 IL 109689 (judicial restraint — avoid constitutional questions when unnecessary)