
      No. 2--00--0846
_________________________________________________________________

      IN THE

      APPELLATE COURT OF ILLINOIS

      SECOND DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE      )    Appeal from the Circuit Court
OF ILLINOIS,     )     of Kane County.
      )
      Plaintiff-Appellee,         )
      )     No. 99--CF--1308
v.    )
      )
JAVIER M. BELTRAN,     )     Honorable
      )     Donald C. Hudson,
      Defendant-Appellant.     )  Judge, Presiding.
_________________________________________________________________

      JUSTICE CALLUM delivered the opinion of the court:
      The State petitioned to adjudicate defendant,  Javier  M.  Beltran,  a
delinquent minor.  Then, pursuant  to  section  5--805(2)  of  the  Juvenile
Court Act of 1987 (the Act) (705 ILCS 405/5--805(2) (West 1998)), the  State
moved to prosecute defendant under the criminal  law.   The  juvenile  court
granted that motion, and a jury  convicted  defendant  of  three  counts  of
attempted first-degree murder (720 ILCS 5/8--4(a), 9--1(a)(1)  (West  1998))
and three counts of aggravated discharge  of  a  firearm  (720  ILCS  5/24--
1.2(a)(2) (West 1998)).  On two of  the  attempt  counts,  the  trial  court
sentenced defendant to consecutive prison terms totaling 21 years.   On  the
remaining  counts,  the  court  imposed  concurrent  eight-year   sentences.
Defendant appeals, arguing that (1) section 5--805(2) of  the  Act  violated
his right to due process of law (U.S. Const., amend.  XIV);  (2)  the  trial
court erred in instructing the jury on accountability; (3)  the  convictions
of aggravated discharge of a firearm violated the one-act,  one-crime  rule;
and (4) the imposition of consecutive  sentences  violated  defendant's  due
process rights (U.S. Const., amend. XIV; Apprendi v. New  Jersey,  530  U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)).   We  affirm  in  part  and
vacate in part.
                                  I. FACTS
      In its petition for adjudication, the  State  alleged  that  defendant
had committed multiple counts of attempted first-degree murder,  a  Class  X
felony (720 ILCS 5/8--4(c)(1) (West 1998)), and aggravated  discharge  of  a
firearm.  On the date of the alleged offenses, defendant was 15  years  old.
In its motion to prosecute, the State asserted  the  existence  of  probable
cause to believe the petition's allegations.  See 705 ILCS  405/5--805(2)(a)
(West 1998).
      At a hearing, the  State  presented  evidence  to  establish  probable
cause, and the juvenile court found it sufficient.  After  the  presentation
of additional evidence, the court determined that defendant had  the  burden
to rebut the presumption that he should be prosecuted.  See 705 ILCS 405/5--
805(2)(a) (West 1998).  The court  considered  the  statutory  factors  (705
ILCS 405/5--805(2)(b)  (West  1998))  and  concluded  that  the  presumption
stood.  Accordingly, the court granted the State's motion.
      A grand jury indicted defendant.  At trial, the  State  presented  the
following evidence relevant to our analysis.  Eloy Cerenil (Eloy)  testified
that on April 10, 1999, about  8:15  p.m.,  he  was  in  his  driveway  with
Rolando Cerenil (Rolando) and Arturo Garcia.   Eloy  heard  gunfire,  and  a
bullet hit him.  The bullet penetrated his  spine  and  left  him  paralyzed
from the waist down.  He did not see who shot him.
      Rolando testified that he heard six or  seven  shots.   Defendant  was
the shooter, and Adam Luna was with him.
      Garcia testified that defendant fired five shots and that Luna was  at
his side, also holding a gun.  A bullet grazed Garcia.  Defendant  and  Luna
ran off.
      After defendant presented evidence of an alibi, the State proffered  a
jury instruction on accountability (see Illinois Pattern Jury  Instructions,
Criminal, No. 5.03 (4th ed. 2000)).  Defendant objected, arguing that  there
had been  no  "indication  of  accountability."   Nevertheless,  relying  on
People v. Testa, 261 Ill. App. 3d 1025 (1994), the  trial  court  found  the
instruction appropriate because the evidence suggested that two people  were
"acting together" in the shooting.
      In denying  his  posttrial  motion,  the  court  rejected  defendant's
constitutional attack on section 5--805(2) of the Act.  Pursuant to  section
5--8--4(a) of the Unified Code of Corrections (the Code) (730 ILCS  5/5--8--
4(a) (West 1998)), the court  imposed  consecutive  sentences  upon  finding
that defendant inflicted "severe bodily injury" and committed  his  offenses
"as  part  of  a  single  course  of  conduct  during  which  there  was  no
substantial change in the nature of the criminal objective."  730 ILCS 5/5--
8--4(a) (West 1998).  In  denying  defendant's  motion  to  reconsider,  the
court declined to merge the aggravated discharge  counts  into  the  attempt
counts.  Defendant appealed.

                      II. SECTION 5--805(2) OF THE ACT
      Defendant argues that, in two  respects,  section  5--805(2)  violates
due process.  First, he asserts that the statute  runs  afoul  of  Apprendi.
Although he did not raise that claim in the trial  court,  a  constitutional
challenge may be raised at any time.  People v. Vilces,  321  Ill.  App.  3d
937, 943 (2001).  Second, he contends that the statute shifts to  the  minor
an impermissible burden.  The trial  court  rejected  that  claim,  but  our
review is de novo.  See People v. Carney, 196 Ill. 2d 518, 526 (2001).
                               A. The Statute
       In  general,  when  the  State  petitions  for  an  adjudication   of
delinquency, the minor is subject only to the sanctions available under  the
Act.  See 705 ILCS 405/5--120  (West  1998).   The  most  serious  of  those
sanctions is  the  minor's  commitment  to  the  juvenile  division  of  the
Department of Corrections until his 21st  birthday.  See  705  ILCS  405/5--
750 (West 1998).  However, in some circumstances, the  State  may  move  the
juvenile court to transfer the case to  the  criminal  court,  allowing  the
State to pursue the sanctions available under the criminal  law.   Depending
on the facts, a transfer may be  mandatory  (705  ILCS  405/5--805(1)  (West
1998)), presumptive (705 ILCS 405/5--805(2) (West 1998)),  or  discretionary
(705  ILCS  405/5--805(3)  (West  1998)).   Here,  the  State   obtained   a
presumptive transfer under section 5--805(2).
      To seek a presumptive transfer, the State must  allege  that  (1)  the
minor committed, e.g., a Class X  felony  (other  than  armed  violence)  or
aggravated discharge of a firearm; and (2) the minor was at least  15  years
old.  705 ILCS 405/5--805(2)(a) (West 1998).  If the  juvenile  court  finds
"probable cause to believe that the allegations *** are true," there  arises
a "rebuttable presumption"  that the case should be transferred.   705  ILCS
405/5--805(2)(a)  (West  1998).   The  court  then  "shall  enter  an  order
permitting prosecution under the criminal laws"  unless,  after  considering
several enumerated factors, the court finds "clear and  convincing  evidence
that the minor would be  amenable  to  the  care,  treatment,  and  training
programs available through the facilities of the juvenile court."  705  ILCS
405/5--805(2)(b) (West 1998).
                                 B. Apprendi
      In this now-famous case, the defendant pleaded  guilty  to  a  second-
degree offense.  Ordinarily, such an offense  was  punishable  by  5  to  10
years' imprisonment.  However, under New  Jersey's  "hate  crime"  law,  the
trial court could impose a sentence of up to 20 years  if  it  found,  by  a
preponderance of the evidence, that the  defendant's  purpose  had  been  to
intimidate the victim because of, e.g., the  victim's  race.   In  Apprendi,
the trial court made such a  finding  and  sentenced  the  defendant  to  12
years' imprisonment.
      The Supreme Court determined that, in essence, the  "hate  crime"  law
allowed the trial court to find, by a  preponderance  of  the  evidence,  an
element  of  the  defendant's  crime.   Such  a   procedure   violated   the
defendant's due process right to  "  'a  jury  determination  that  [he]  is
guilty of every element of the crime with which  he  is  charged,  beyond  a
reasonable doubt.' "  See Apprendi, 530 U.S. at 477, 147 L. Ed. 2d  at  447,
120 S. Ct. at 2356, quoting United States v. Gaudin, 515 U.S. 506, 510,  132
L. Ed. 2d 444, 449, 115 S. Ct. 2310, 2313  (1995).   Thus,  the  Court  held
that, "[o]ther than the fact of a prior conviction, any fact that  increases
the penalty for a crime beyond the  prescribed  statutory  maximum  must  be
submitted to a jury, and proved beyond a reasonable doubt."   Apprendi,  530
U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.
      Here, defendant submits the following.  When the State  petitioned  to
adjudicate him delinquent, he faced a sanction no  greater  than  commitment
until his 21st birthday.   However,  after  the  juvenile  court  found  (1)
probable cause to believe the State's allegations and (2) a  lack  of  clear
and convincing evidence of defendant's amenability to the  juvenile  court's
facilities,  defendant  faced  (and  ultimately  received)  a  much  greater
sanction.   Thus,  in  violation  of  Apprendi,  the  maximum  penalty   was
increased upon facts that were not submitted to a jury and proved  beyond  a
reasonable doubt.
      Superficially, defendant appears to proffer  a  valid  application  of
Apprendi.  Nevertheless, his argument fails because he attempts  to  divorce
the case's holding from its legal basis.   New  Jersey's  "hate  crime"  law
violated due process because, as the accused in a criminal prosecution,  the
defendant had the right to  have  a  jury  determine,  beyond  a  reasonable
doubt, the facts that established the  maximum  penalty.   A  hearing  under
section  5--805(2),  however,  is  a  juvenile  proceeding.   Thus,  whether
defendant was denied due process depends  on  the  standards  applicable  to
those proceedings, rather than those applicable  to  criminal  prosecutions.
See People v. Taylor, 76 Ill. 2d 289, 301-02 (1979).
      It is well established that, in a  juvenile  proceeding,  due  process
does not require a jury.  See McKeiver v. Pennsylvania, 403 U.S.  528,  545-
46, 29 L. Ed. 2d 647, 661, 91 S. Ct.  1976,  1986  (1971);  People  ex  rel.
Carey v. Chrastka, 83 Ill. 2d 67, 74 (1980).  As for the standard of  proof,
due  process  requires  proof  beyond  a   reasonable   doubt   during   the
adjudicatory stage of a juvenile proceeding (In re Winship,  397  U.S.  358,
367-68, 25 L. Ed. 2d 368, 377, 90 S. Ct. 1068, 1074-75  (1970)),  i.e.,  the
stage at which " 'a determination is made as to  whether  a  juvenile  is  a
"delinquent" as a result  of  alleged  misconduct  on  his  part,  with  the
consequence that he may be committed to a  state  institution'  "  (Winship,
397 U.S. at 358-59, 25 L. Ed. 2d at 372, 90 S. Ct. at  1069-70,  quoting  In
re Application of Gault, 387 U.S. 1, 13, 18 L. Ed. 2d 527, 538,  87  S.  Ct.
1428,  1436  (1967)).   However,  that  standard  does  not  apply  to   the
dispositional stage of a juvenile proceeding.  See Winship, 397 U.S. at  359
n.1, 25 L. Ed. 2d at 372 n.1, 90 S. Ct. at 1070 n.1.
      A hearing under section 5--805(2) is dispositional, not  adjudicatory.
 That is, the hearing determines not the minor's  guilt  but  the  forum  in
which his guilt may be adjudicated.  Taylor,  76  Ill.  2d  at  302.   Thus,
although the juvenile court made findings that  exposed  him  to  a  greater
sanction, defendant had no due process right  to  have  a  jury  make  those
findings beyond a reasonable doubt.  Because  Apprendi  bears  only  on  the
process due in criminal proceedings, the case is simply inapplicable here.
                                 C. Burdens
      Defendant asserts that, once the juvenile court finds  probable  cause
to believe the State's allegations, section 5--805(2)  invokes  a  mandatory
rebuttable presumption that shifts to the minor the  burden  of  proof.   On
this basis, too, defendant contends that the statute violates due process.
      We first note that  section  5--805(2)  does  not  expressly  place  a
burden  on  the  minor.   However,  it  expressly  invokes   a   "rebuttable
presumption" (705 ILCS  405/5--805(2)(a)  (West  1998)),  and  a  rebuttable
presumption necessarily shifts the burden of proof (see  Heiner  v.  Donnan,
285 U.S. 312, 329, 76 L. Ed. 772, 780, 52 S. Ct. 358,  362  (1932)).   Thus,
once the presumption arose,  the  juvenile  court  correctly  inferred  that
defendant had the statutory burden to rebut it.
      We further note that  defendant  correctly  labels  this  a  mandatory
presumption, rather than a permissive one.  A permissive presumption  allows
but does not require  the  fact  finder  to  infer  the  presumed  fact.   A
mandatory presumption, on the other hand, is one that the  fact  finder  may
not reject.  People v. Watts, 181 Ill. 2d  133,  142  (1998).   Section  5--
805(2) states that, unless the presumption is rebutted, the  juvenile  court
"shall enter an order  permitting  prosecution  under  the  criminal  laws."
(Emphasis added.)  705 ILCS 405/5--805(2)(b) (West 1998).  In  other  words,
unless the presumption is rebutted, the court must accept the presumed  fact
that a transfer is warranted.  Thus,  the  presumption  is  mandatory.   See
People v.  O'Brien,  197  Ill.  2d  88,  93  (2001)  ("shall"  is  "a  clear
expression of legislative intent to impose a mandatory obligation").
      A mandatory  rebuttable  presumption  violates  due  process  when  it
relieves the State of its burden to prove the elements of a  crime.   Watts,
181 Ill. 2d at 144-47.  However, in considering statutes similar to  section
5--805(2),  courts  across  the  country  have   unanimously   upheld   such
presumptions.  For example, in In re  Welfare  of  L.J.S.,  539  N.W.2d  408
(Minn. Ct. App. 1995), the Minnesota Court of Appeals addressed a  virtually
identical statute.  The court noted that the presumption at issue  does  not
shift the burden of proof on the  elements  of  an  offense.   Instead,  the
presumption "merely determines which court will try the  case  and  evaluate
the elements of the offense."  (Emphasis  added.)   L.J.S.,  539  N.W.2d  at
413; see also  State  v.  Coleman,  26  P.3d  613,  618  (Kan.  2001)  ("The
presumption does not improperly shift the burden of proof to  the  defendant
on any elements of the offenses"); Commonwealth v. Cotto, 708 A.2d 806,  814
(Pa. Super.  Ct.  1998)  (because  transfer  hearing  determines  only  "the
appropriate forum for the adjudicatory proceeding," burden  on  minor  "does
not violate the maxim that the Commonwealth is  charged  with  proving  each
element of an offense").
      As we noted in the  preceding  section,  our  own  supreme  court  has
recognized that a transfer hearing resolves only  whether  the  adjudicatory
proceeding will occur in the juvenile forum.  Taylor, 76  Ill.  2d  at  302.
The court has further noted that a minor has no constitutional right  to  be
adjudicated in that forum.  People v. J.S., 103 Ill.  2d  395,  402  (1984).
Indeed, the legislature chose to create the juvenile court (J.S.,  103  Ill.
2d at 402), and the legislature could choose to abolish  it.   See  Coleman,
26 P.3d at 616 ("The special treatment of  juvenile  offenders  ***  results
from statutory authority, which can be withdrawn").  Thus,  the  legislature
was free to impose on the minor the burden to prove that he belongs in  that
forum.  Regardless whether he meets  that  burden,  the  State  retains  the
ultimate burden to prove the  elements  of  the  crime,  and  the  minor  is
afforded due process of law.
                             III. ACCOUNTABILITY
      Next, defendant argues that the  State  failed  to  submit  sufficient
evidence to justify instructing the  jury  on  accountability.   He  asserts
that the evidence showed that he was guilty as a principal or not guilty  at
all.  We disagree.
      A defendant is legally accountable for another's conduct when,  before
or during the commission of a crime, and  with  the  intent  to  promote  or
facilitate the commission of that crime, he solicits, aids,  abets,  agrees,
or attempts to aid the other in the planning or  commission  of  the  crime.
720 ILCS 5/5--2(c) (West 1998);  Testa,  261  Ill.  App.  3d  at  1030.   An
instruction on the  issue  is  justified  if  the  State  submits  even  the
"slightest" evidence to support a  theory  of  accountability.   Testa,  261
Ill. App.  3d  at  1030.   Such  evidence,  along  with  evidence  that  the
defendant acted as a principal, is sufficient to support an  instruction  on
each theory, even if the State advanced only  one  in  its  case  in  chief.
Testa, 261 Ill. App. 3d at 1030.  We may reverse a  trial  court's  decision
to issue a jury  instruction  only  if  the  court  abused  its  discretion.
People v. Kidd, 295 Ill. App. 3d 160, 167 (1998).
      Defendant notes that only two witnesses identified a specific  shooter
and that both identified defendant.  No one testified that shots were  fired
by anyone else for  whom  defendant  could  have  been  accountable.   Thus,
defendant   concludes,   no   evidence   justified   an    instruction    on
accountability.
      We acknowledge the absence of any  direct  evidence  that  anyone  but
defendant  fired  shots.   However,  evidence  of  accountability   may   be
circumstantial.  People v. Cooks, 253 Ill. App. 3d 184, 188 (1993).   Garcia
testified that, as defendant fired his shots, Luna was at his side,  holding
a gun.  Furthermore, Garcia stated that  defendant  fired  five  shots,  but
Rolando testified that he heard six or seven.  Thus,  although  no  one  saw
Luna fire his gun, the jury could have inferred that he did  so.   The  jury
then could have determined that, to the extent that Luna  was  guilty  as  a
principal, defendant was guilty as an accessory.
      Defendant relies on People v. Williams, 161 Ill. 2d 1  (1994),  People
v. Crowder, 239 Ill. App. 3d 1027 (1993), and People v.  Lusietto,  41  Ill.
App. 3d 205 (1976).  However, in each case, the State presented no  evidence
to even suggest that the defendant could have been guilty  as  an  accessory
rather than a principal.  See Williams, 161 Ill.  2d  at  51;  Crowder,  239
Ill. App. 3d  at  1030;  Lusietto,  41  Ill.  App.  3d  at  207-08.   As  we
explained, that is not the case here.   The  trial  court  did  not  err  in
instructing the jury on accountability.
                           IV. ONE ACT, ONE CRIME
      Defendant asserts that his convictions of aggravated  discharge  of  a
firearm arose from the same physical act as  his  convictions  of  attempted
first-degree  murder.   Thus,  he  concludes,   the   aggravated   discharge
convictions must be vacated under the one-act, one-crime rule.   See  People
v. King, 66 Ill. 2d 551, 566 (1977).  The State agrees, and so do we.
      In People v. Crespo, No. 86556  (February  16,  2001),  the  defendant
stabbed the victim three times  in  rapid  succession.   The  defendant  was
charged with, and convicted of, armed violence and aggravated battery.   The
supreme  court  held  that,  although  the  multiple  stabbings  could  have
supported the separate convictions, the State did not apportion  the  crimes
among the various wounds, either in the indictment  or  at  trial.   Because
the State portrayed the defendant's conduct as  a  single  attack,  multiple
convictions were untenable.
      Crespo controls.  Here, defendant and Luna fired a series of shots  at
three victims.   Against  each  victim,  defendant  was  charged  with,  and
convicted of, a count of  attempt  and  a  count  of  aggravated  discharge.
However, as to each victim, the  indictment  did  not  specify  which  shots
supported which charge.  Similarly, at trial, the State did not  distinguish
among the shots.  Thus, against each victim, defendant  committed  a  single
act that supported only a single conviction.  Because  aggravated  discharge
of a firearm is less serious than attempted first-degree murder,  we  vacate
the aggravated discharge convictions.  See People v. Amaya,  321  Ill.  App.
3d 923, 931 (2001).
                          V. CONSECUTIVE SENTENCES
      Finally, defendant attacks section 5--8--4(a) of the Code,  the  basis
for his consecutive sentences.  He notes  that,  to  invoke  section  5--8--
4(a), the trial court found that he inflicted  "severe  bodily  injury"  and
committed his crimes "as part of a single course  of  conduct  during  which
there was no substantial change in the nature of  the  criminal  objective."
730 ILCS 5/5--8--4(a) (West 1998).  He concludes that, under  Apprendi,  due
process required those facts to be submitted to a jury and proved  beyond  a
reasonable doubt.
      In Carney, 196  Ill.  2d  at  531-32,  the  supreme  court  foreclosed
defendant's argument:
      "While, undeniably, a defendant  who  receives  consecutive  sentences
      will serve a longer  period  of  imprisonment  than  a  defendant  who
      receives identical concurrent sentences, this fact alone does not make
      Apprendi applicable.  The  application  by  a  judge  of  the  factors
      identified in section 5--8--4(a)  of  the  Code  determines  only  the
      manner in which a defendant will  serve  his  sentences  for  multiple
      offenses.  The defendant is not  exposed  to  punishment  beyond  that
      authorized by the jury's verdict, provided that the sentence for  each
      separate offense does not exceed the maximum permitted by statute  for
      that offense."
The court concluded "that consecutive sentences imposed under section 5--8--
4(a) of the Code do not violate the due process  rights  of  defendants  and
that  the  Supreme  Court's  Apprendi  decision  does  not  apply  to   such
sentences."  Carney, 196 Ill. 2d at 536.
      In accordance with Carney, we reject defendant's argument.
                               VI. CONCLUSION
      For these reasons, we vacate  defendant's  convictions  of  aggravated
discharge of a firearm.  In all other respects, the judgment of the  circuit
court of Kane County is affirmed.
      Affirmed in part and vacated in part.
      GEIGER and BYRNE, JJ., concur.
