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                              Appellate Court                           Date: 2016.12.12
                                                                        10:04:51 -06'00'




                   People v. Taylor, 2016 IL App (1st) 141251



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           ROMARO TAYLOR, Defendant-Appellant.



District & No.    First District, Second Division
                  Docket No. 1-14-1251



Filed             October 18, 2016



Decision Under    Appeal from the Circuit Court of Cook County, No. 11-CR-17491; the
Review            Hon. Luciano Panici, Judge, presiding.



Judgment          Conviction affirmed; remanded for resentencing.



Counsel on        Michael J. Pelletier, Patricia Mysza, and Michael Gentithes, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Mary P. Needham, and Caitlin M. Valiulis, Assistant State’s
                  Attorneys, of counsel), for the People.



Panel             JUSTICE MASON delivered the judgment of the court, with opinion.
                  Presiding Justice Hyman and Justice Pierce concurred in the judgment
                  and opinion.
                                              OPINION

¶1       Following a 2014 jury trial, defendant Romaro Taylor was convicted of attempted murder
     and aggravated battery with a firearm and sentenced as a Class X offender to 36 years of
     imprisonment. On appeal, he argues that (1) the trial court erred in refusing to instruct the jury
     on defense of others, (2) trial counsel was ineffective for failing to request a jury instruction
     that Taylor could not be found guilty of attempted first degree murder if he unreasonably
     believed he needed to use force in defense of others, (3) the trial court erroneously refused to
     sentence Taylor as a Class 1 offender on his attempted murder conviction, and (4) the trial
     court improperly imposed certain fines and fees. For the reasons that follow, we affirm
     Taylor’s conviction, vacate the $2 Public Defender Records Automation Fee, and remand for
     resentencing.

¶2                                           BACKGROUND
¶3       On December 20, 2010, Taylor shot his then-girlfriend, Lashae Depratto, after her car hit
     his ex-girlfriend’s car, in which Taylor’s seven-year-old daughter was a passenger. Depratto
     and an eyewitness identified Taylor as the shooter, but he evaded arrest until September 2011.
     Following his arrest, Taylor was charged with, inter alia, attempted first degree murder and
     aggravated battery with a firearm.
¶4       At a March 2014 jury trial, Depratto testified that on December 20, she drove Taylor to his
     mother’s house on 8th Avenue in Phoenix, Illinois, because Taylor’s niece was coming over to
     pick up clothes. Once they arrived at the house, Taylor went inside, but he asked Depratto to
     leave because his mother did not like her. Depratto did not leave but remained in her car, which
     was parked on the west side of the street directly in front of Taylor’s mother’s house, for
     approximately 20 minutes. She then went to the front door of the house and asked Taylor if she
     could use the bathroom. Taylor allowed her inside, and the two then argued over Depratto’s
     request that Taylor return his set of keys to her house and car. During their exchange, Taylor’s
     niece and his daughter arrived, having been driven over by Erica Braxton, Taylor’s
     ex-girlfriend and mother of his child. Braxton did not come into the home but waited in her car,
     which was parked on the east side of 8th Avenue, across from Taylor’s mother’s house.
¶5       Eventually, Depratto obtained her keys from Taylor and left the house, but instead of
     driving home, she circled the block. As she approached Taylor’s mother’s house, driving
     southbound, she saw Taylor leaning inside Braxton’s car “fondling” and “playing” with her.
     Angered, Depratto drove past them, but then made a U-turn and drove northbound on the east
     side of 8th Avenue. When she returned to the scene, Taylor was no longer standing by
     Braxton’s car. As Depratto neared Braxton’s car, she testified that she swerved to avoid a
     pothole or speed bump (though there was no evidence of either near the site of the occurrence)
     and sideswiped the driver’s side of Braxton’s car. The collision caused Depratto’s right axle
     and tire to “break” and her airbags to deploy. Additionally, the front bumper of Braxton’s car
     was pulled off. When Depratto’s car came to a stop in front of Braxton’s vehicle, Depratto put
     the car in park, turned it off, and tried, unsuccessfully, to restart it. She then heard Taylor say
     either “bitch you tried to kill my kid,” or “bitch you trying to kill my kid.” When Depratto
     turned her head, Taylor had emerged from his mother’s yard, 10 feet away, and was
     approaching her car with a gun in his hand. As Taylor stood at her closed car window, he shot


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       at Depratto three times, hitting her arm as she raised her hands to cover her face. She was
       eventually taken to the hospital and treated for her injuries.
¶6         On cross-examination, Depratto admitted telling investigators who spoke to her while she
       was hospitalized that she was upset at Taylor because she believed he and Braxton were talking
       about her behind her back. Although she denied telling investigators that she was driving 30 to
       35 miles per hour when she collided with Braxton’s parked car, she was impeached on this
       point by the stipulated testimony of Investigator Paul Jimos and Detective Sergeant Valadez of
       the Phoenix police department, who interviewed her on December 23, 2010.
¶7         At the jury instruction conference following the conclusion of testimony, Taylor sought an
       instruction that he was acting in defense of others, which the court declined to give, stating:
       “The [d]anger had subsided. There was no more danger. When the car stopped, the car wasn’t
       going anywhere. So at that point in time self defense is no longer available. So I’m not giving
       them the self defense instruction or *** the defense of others ***.”
¶8         The jury ultimately convicted Taylor of attempted first degree murder and aggravated
       battery with a firearm, and the court merged the two convictions for sentencing purposes.
¶9         A defendant convicted of attempted first degree murder is generally subject to Class X
       sentencing (720 ILCS 5/8-4(c)(1) (West 2012)), but at Taylor’s sentencing hearing, defense
       counsel argued that he should be sentenced as a Class 1 offender pursuant to section
       8-4(c)(1)(E) of the Criminal Code of 2012, which reads:
               “[I]f the defendant proves by a preponderance of the evidence at sentencing that, at the
               time of the attempted murder, he or she was acting under a sudden and intense passion
               resulting from serious provocation by the individual whom the defendant endeavored
               to kill, or another, and, had the individual the defendant endeavored to kill died, the
               defendant would have negligently or accidentally caused that death, then the sentence
               for the attempted murder is the sentence for a Class 1 felony[.]” 720 ILCS
               5/8-4(c)(1)(E) (West 2012).
       The trial court found this section inapplicable because it did not believe that had Depratto died,
       Taylor’s conduct could have been described as accidental or negligent. Alternatively, the court
       found that Taylor was not acting under a “sudden and intense passion.” The court sentenced
       Taylor to 36 years of imprisonment. Taylor unsuccessfully moved to reconsider his sentence.

¶ 10                                             ANALYSIS
¶ 11        We first address the claimed error in the jury instructions. Taylor contends that the trial
       court erred in refusing to instruct the jury on defense of others, which is an affirmative defense
       requiring some evidence that (1) unlawful force was threatened against defendant or others,
       (2) defendant was not the aggressor, (3) the danger of harm was imminent, (4) the use of force
       was necessary, (5) defendant subjectively believed a danger existed requiring the use of force
       applied, and (6) defendant’s belief was objectively reasonable. See People v. Jeffries, 164 Ill.
       2d 104, 127-28 (1995); 720 ILCS 5/7-1(a) (West 2012). The overarching question is whether
       the defendant’s subjective belief in the necessity of using deadly force was reasonable under
       the circumstances. People v. Holman, 2014 IL App (3d) 120905, ¶ 58. A defendant is entitled
       to a self-defense or defense of others instruction so long as there is slight evidence adduced at
       trial to support his theory. People v. Lee, 213 Ill. 2d 218, 224 (2004).



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¶ 12        Our supreme court has expressed divergent views as to what standard of review we apply
       to a trial court’s refusal to give a specific jury instruction. Compare People v. Everette, 141 Ill.
       2d 147, 157 (1990) (applying de novo standard of review to issue of whether defendant was
       entitled to jury instructions on self-defense) and People v. Washington, 2012 IL 110283, ¶ 19
       (reviewing de novo trial court’s refusal to instruct jury on second degree murder), with People
       v. Mohr, 228 Ill. 2d 53, 65 (2008) (reviewing trial court’s decision to give instruction defining
       provocation for abuse of discretion) and People v. Jones, 219 Ill. 2d 1, 31 (2006) (“The giving
       of jury instructions is a matter within the sound discretion of the trial court.”). This court has
       examined this conflict in recent cases and determined that abuse of discretion is the appropriate
       standard of review. See, e.g., People v. Cacini, 2015 IL App (1st) 130135, ¶ 46; People v.
       Gibson, 403 Ill. App. 3d 942, 950-51 (2010), abrogated on other grounds by People v. Bailey,
       2014 IL 115459, ¶ 18; People v. Couch, 387 Ill. App. 3d 437, 444 (2008); see also People v.
       Boston, 2016 IL App (1st) 133497, ¶¶ 34, 37 (distinguishing Everette and Washington but
       finding outcome was same under either abuse of discretion or de novo review). We reach the
       same conclusion.
¶ 13        In Everette, the first case to apply a de novo standard of review to a trial court’s jury
       instructions, the supreme court relied on People v. Lockett, 82 Ill. 2d 546, 553 (1980), for the
       proposition that “[i]t is a matter of law whether the defendant has met the evidentiary minimum
       entitling him to instructions on an affirmative defense.” 141 Ill. 2d at 157. But in Lockett, the
       supreme court stated only that it was the duty of the trial court to determine if there was any
       evidence tending to show that the defendant had a subjective belief that the use of force was
       necessary, while it was for the jury to decide if that subjective belief was reasonable or
       unreasonable. Lockett, 82 Ill. 2d at 552-53. The Lockett court then noted that it could conceive
       of no circumstance in which the trial court could take that question from the jury and
       determine, as a matter of law, that defendant’s subjective belief in the need to use force was
       reasonable rather than unreasonable. Id. at 553. This conclusion does not support a de novo
       standard of review for the more general issue of whether the evidence is sufficient to support
       the giving of a jury instruction. See People v. Boston, 2016 IL App (1st) 133497, ¶¶ 34-36.
¶ 14        To be sure, our supreme court repeated the Everette standard in People v. Washington,
       2012 IL 110283, ¶ 19. But the issue in Washington was whether a trial court that instructs the
       jury on self-defense is required, as a matter of law, to further instruct the jury on second degree
       murder. Id. ¶ 56. This is clearly a legal question calling for de novo review. In contrast, here,
       the issue is whether there is sufficient evidence to support a defense of others instruction,
       which is a question of fact, not of law. See Cacini, 2015 IL App (1st) 130135, ¶ 46. As such, an
       abuse of discretion standard of review is appropriate. Id.
¶ 15        Abuse of discretion is the most deferential standard of review, second only to no review at
       all. People v. Holman, 402 Ill. App. 3d 645, 650 (2010). An abuse of discretion occurs when
       the trial court’s decision is “fanciful, arbitrary, or unreasonable to the degree that no reasonable
       person would agree with it.” People v. Ortega, 209 Ill. 2d 354, 359 (2004). Stated differently,
       we will reverse a trial court’s decision for an abuse of discretion only where the decision is
       “ ‘clearly against logic,’ *** ‘without employing conscientious judgment.’ ” Couch, 387 Ill.
       App. 3d at 444 (quoting Long v. Mathew, 336 Ill. App. 3d 595, 600 (2008)).
¶ 16        We cannot say the trial court’s conclusion was illogical or evinced a lack of judgment.
       Depratto testified that her car was inoperable after the crash, as her airbags had deployed and
       her right axle was broken. Her attempt to restart it was unsuccessful. Thus, she no longer posed

                                                    -4-
       a danger to Taylor’s daughter. Taylor contends on appeal that from his vantage point 10 feet
       away from the scene of the crash, he was unaware that Depratto was unable to start her car and
       cause further injury. But because Taylor did not testify, we do not know what he saw or could
       see. Accordingly, it was not unreasonable for the trial court to disregard this speculative
       argument. Finally, the fact that Taylor yelled that Depratto was “trying to” or “tried to” “kill
       [his] kid,” in light of the other evidence, does not support Taylor’s contention that harm was
       imminent. The car had stopped, the airbags had deployed, and there was no immediate danger
       that Depratto would (or could) restart it. Even if Taylor could not discern the condition of the
       vehicle from 10 feet away, when he stood five to six inches from Depratto’s window and shot
       at her, he surely knew that the threat had passed, as the evidence showed she put her hands up
       in a defensive posture. For these reasons, we conclude that the trial court did not abuse its
       discretion when it declined to instruct the jury on defense of others. See People v. Dillard, 319
       Ill. App. 3d 102, 106 (2001) (right of self-defense does not permit a defendant to act in
       retaliation or “to pursue and inflict injury upon an initial aggressor after the aggressor
       abandons the altercation”).
¶ 17        Taylor next challenges his counsel’s performance with regard to tendering jury
       instructions, contending that counsel should have sought a nonpattern instruction that if the
       jury found he had an unreasonable belief in the need to use force, it should acquit him of
       attempted first degree murder. A claim of ineffective assistance requires a defendant to
       demonstrate (1) that counsel’s performance fell below an objective standard of reasonableness
       and (2) there is a reasonable probability that the outcome of the proceeding would have been
       different but for counsel’s errors. People v. Ramsey, 239 Ill. 2d 342, 433 (2010) (citing
       Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). “ ‘The benchmark for judging any
       claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
       functioning of the adversarial process that the trial cannot be relied on as having produced a
       just result.’ ” People v. Albanese, 104 Ill. 2d 504, 525-26 (1984) (quoting Strickland, 466 U.S.
       at 686).
¶ 18        Taylor’s argument is premised on his belief that Illinois law allows a defendant who is
       acting in imperfect self-defense to escape responsibility for attempted first degree murder. But
       the law is not so clear. To be sure, in People v. Reagan, 99 Ill. 2d 238, 240 (1983), our supreme
       court held that the offense of attempted voluntary manslaughter did not exist in Illinois because
       a defendant cannot intend to kill without lawful justification while simultaneously having an
       unreasonable belief in the need to use force in self-defense. See also People v. Lopez, 166 Ill.
       2d 441, 448-49 (1995) (applying logic of Reagan to conclude that Illinois law does not
       recognize offense of attempted second degree murder). From this, however, it does not
       necessarily follow that a defendant who has an unreasonable belief in the need to use force
       cannot be convicted of attempted first degree murder. Indeed, shortly after Taylor’s trial
       concluded, this court rejected that very proposition. See People v. Guyton, 2014 IL App (1st)
       110450, ¶ 46 (affirming defendant’s conviction for attempted first degree murder
       notwithstanding that evidence demonstrated he was acting in imperfect self-defense).
¶ 19        But in light of our holding that the trial court did not err in finding there was not even slight
       evidence supporting an instruction on defense of others, we need not resolve this issue. Absent
       evidence tending to show that Taylor was acting in defense of others, he cannot be entitled to
       an instruction premised on a finding that his belief in the need to defend others was



                                                     -5-
       unreasonable. Thus, Taylor’s claim that counsel was ineffective for failing to seek such an
       instruction fails.
¶ 20       Next, Taylor alleges error in the trial court’s refusal to consider sentencing him as a Class 1
       offender pursuant to section 8-4(c)(1)(E) of the Criminal Code, which we have quoted above.
       The trial court found this section inapplicable, reasoning that “as you read the statute itself, the
       very last part which basically, had the individual defendant therefore killed, the defendant
       would have negligently or accidentally caused the death. There’s no negligent or accidentally
       here.” In other words, the trial court understood the statute to require Taylor to prove that he
       intentionally attempted to kill Depratto due to serious provocation, but that, had he been
       successful, the killing would have been deemed negligent or accidental. Taylor argues, and the
       State concedes, that this interpretation is incorrect. We agree.
¶ 21       Resolution of this issue is a matter of statutory interpretation, which presents a question of
       law that we review de novo. People v. Chapman, 2012 IL 111896, ¶ 23. Any interpretation of a
       statute necessarily begins with the understanding that our primary role is to give effect to the
       intent of the legislature. Id. The best indication of legislative intent is the language of the
       statute itself, and if that language is clear on its face, it is unnecessary to resort to other aids of
       construction. Brucker v. Mercola, 227 Ill. 2d 502, 513 (2007).
¶ 22       Here, the statutory language clearly addresses two separate scenarios. First, it addresses the
       scenario where the defendant attempts to kill the one who provoked him, and second, it
       addresses the “transferred intent” scenario where the defendant specifically intends to kill his
       provoker but instead takes a substantial step toward killing another, whose death, had it
       occurred, would have been deemed negligent or accidental. Under either circumstance,
       provided that the defendant was seriously provoked and acting under intense passion, he is
       entitled to a classification reduction for sentencing purposes.
¶ 23       The trial court’s interpretation would make it impossible for a defendant convicted of
       attempted murder to obtain a reduction in classification based on provocation and render the
       statute meaningless. Attempted murder requires a showing that a defendant had the specific
       intent to kill (see People v. Hill, 276 Ill. App. 3d 683, 687 (1995)), which is fundamentally
       incompatible with the statutory language providing that if the defendant’s victim died, the
       death would have been deemed negligent or accidental. Taylor’s interpretation of the statute as
       referring both to the situation where the defendant attempts to kill his provoker as well as the
       separate situation where the defendant negligently or accidentally acts against another in his
       attempt to kill his provoker better conforms to legislative intent. See Valfer v. Evanston
       Northwestern Healthcare, 2016 IL 119220, ¶ 22 (“We will *** avoid a construction of a
       statute that renders any portion of it meaningless.”).
¶ 24       But this conclusion does not end our inquiry, as the trial court alternatively held that Taylor
       was not acting under a sudden and intense passion so as to entitle him to a classification
       reduction in any event. We review the trial court’s sentencing decision for an abuse of
       discretion. People v. Fern, 189 Ill. 2d 48, 53 (1999).
¶ 25       In reaching its decision, the trial court reasoned “There was no intense passion. The vehicle
       was stopped. The vehicle wasn’t moving. He initially saw her trying to start it, but the vehicle
       didn’t start. The vehicle didn’t move. He went there and shot her.” But the fact that the car was
       stopped, while relevant to the inquiry of whether danger was ongoing for purposes of
       self-defense or defense of others, has no bearing on whether Taylor was “acting under a sudden
       and intense passion.” Instead, the passion under which Taylor acted stemmed from witnessing

                                                      -6-
       Depratto drive her car at a speed of 30 to 35 miles per hour into the car carrying his daughter.
       Taylor evinced this passion by exclaiming “you tried to kill my kid,” as he ran from his
       mother’s yard to shoot Depratto. These events took place in quick succession, leaving little
       time for Taylor’s anger to subside. While we are mindful of the deference we owe to the trial
       court’s findings on issues of fact, the evidence leads us to conclude that Taylor was indeed
       acting under a sudden and intense passion when he shot Depratto, and the trial court’s decision
       to the contrary was an abuse of discretion. See People v. Rivera, 2013 IL 112476, ¶ 37 (trial
       court abuses its discretion where decision is “arbitrary, fanciful, or unreasonable to the degree
       that no reasonable person would agree with it”).
¶ 26       Of course, the fact that Taylor was impassioned, standing alone, is insufficient to entitle
       him to a classification reduction. See 720 ILCS 5/8-4(c)(1)(E) (West 2012) (requiring showing
       of serious provocation); cf. People v. Garcia, 165 Ill. 2d 409, 429 (1995) (“[P]assion on behalf
       of the defendant, no matter how violent, will not relieve the defendant of culpability for first
       degree murder unless it is engendered by provocation which the law recognizes as
       reasonable.”). The parties dispute whether Taylor made the requisite showing under the statute
       that he was seriously provoked by Depratto. However, because the trial court (erroneously)
       concluded that Taylor was not acting under a sudden and intense passion, it did not reach the
       issue of provocation. Nothing herein should be considered as an indication of what the finding
       should be on the issue of provocation. Therefore, we remand for the trial court to make this
       factual determination in the first instance. See People v. Tramble, 2012 IL App (3d) 110867,
       ¶¶ 17-18 (remanding for trial court to make factual findings in accordance with correct
       interpretation of statute).
¶ 27       Finally, Taylor challenges certain fines and fees the court imposed. Specifically, Taylor
       contends that the imposition of the $2 Public Defender Records Automation Fee (55 ILCS
       5/3-4012 (West 2012)) and the $2 State’s Attorney Records Automation Fee (55 ILCS
       5/4-2002.1(c) (West 2012)) violates the prohibition on ex post facto laws, as both assessments
       were enacted in 2012, after Taylor committed these crimes.
¶ 28       As noted, Taylor did not challenge any of the fines and fees imposed by the trial court at the
       time of sentencing. The State has addressed the merits of Taylor’s argument despite the
       forfeiture. Had the State argued forfeiture, we would have been hard-pressed to overlook it,
       given the insubstantial nature of the fees assessed. See Ill. S. Ct. R. 615(a) (“Any error, defect,
       irregularity, or variance which does not affect substantial rights shall be disregarded.”). And
       the rubric typically employed by appellate counsel—that the judgment imposing allegedly
       improper fines and fees is void—is no longer viable in light of People v. Castleberry, 2015 IL
       116916, ¶ 17 (abrogating rule that sentence not conforming to statutory requirements is void).
       We encourage trial counsel to address such claimed errors in the trial court instead of risking
       forfeiture on appeal. But because the State did not argue forfeiture in this case, we will address
       the claims on their merits.
¶ 29       We have previously held that the ex post facto doctrine does not apply to these automation
       fees, because they are compensatory rather than punitive. See People v. Rogers, 2014 IL App
       (4th) 121088, ¶ 30 (“ ‘The prohibition against ex post facto laws applies only to laws that are
       punitive.’ ” (quoting People v. Dalton, 406 Ill. App. 3d 158, 163 (2010))); see also People v.
       Reed, 2016 IL App (1st) 140498, ¶¶ 16-17 (automation fees are compensatory). While Taylor
       argues that the automation charges are fines—not fees—he cites no authority for that


                                                    -7-
       proposition, and thus we conclude that the ex post facto doctrine does not prohibit the
       assessment of these charges.
¶ 30        Nevertheless, as the State notes, because Taylor was represented by private counsel during
       trial, the $2 Public Defender Records Automation Fee is inapplicable, and we vacate the same.
¶ 31        Taylor also challenges the $25 Court Services Fee, contending that it is inapplicable to
       him. But this contention is based on a misreading of the statute, which provides, in relevant
       part:
                “In criminal, local ordinance, county ordinance, traffic and conservation cases, such
                fee shall be assessed against the defendant upon a plea of guilty, stipulation of facts or
                findings of guilty, resulting a judgment of conviction, or order of supervision, or
                sentence of probation without entry of judgment pursuant to Section 10 of the Cannabis
                Control Act, Section 410 of the Illinois Controlled Substances Act, Section 70 of the
                Methamphetamine Control and Community Protections Act, Section 12-4.3 or
                subdivision (b)(1) of Section 12-3.05 of the Criminal Code of 1961 or the Criminal
                Code of 2012, Section 10-102 of the Illinois Alcoholism and Other Drug Dependency
                Act, Section 40-10 of the Alcoholism and Other Drug Abuse and Dependency Act, or
                Section 10 of the Steroid Control Act.” 55 ILCS 5/5-1103 (West 2012).
¶ 32        Taylor argues that because he was not convicted under the enumerated provisions of the
       specified acts, his fee was improperly assessed. But we have rejected this reading of the statute,
       noting “[i]t is clear that the statute permits assessment of this fee upon any judgment of
       conviction but also permits such assessment for orders of supervision or probation, made
       without entry of a judgment of conviction, for certain limited and enumerated criminal
       provisions.” (Emphasis added.) People v. Williams, 2011 IL App (1st) 091667-B, ¶ 18; see
       also People v. Anthony, 2011 IL App (1st) 091528-B, ¶¶ 26-27. We see no reason to depart
       from these holdings and conclude that the court services fee was properly assessed against
       Taylor.

¶ 33                                      CONCLUSION
¶ 34      For these reasons, we affirm Taylor’s conviction, vacate the $2 Public Defender Records
       Automation Fee, and remand for resentencing on the attempted murder conviction.

¶ 35      Conviction affirmed; remanded for resentencing.




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