                                        2014 IL App (3d) 120766

                                Opinion filed August 7, 2014
     ______________________________________________________________________________

                                                IN THE

                                 APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                               A.D., 2014

     THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
     OF ILLINOIS,                           ) of the 12th Judicial Circuit
                                            ) Will County, Illinois,
           Plaintiff-Appellant,             )
                                            ) Appeal No. 3-12-0766
     v.                                     ) Circuit No. 12-CM-1815
                                            )
     SANDRO ESPINOZA,                       ) Honorable
                                            ) Victoria M. Kennison
           Defendant-Appellee.              ) Judge, Presiding.
     ______________________________________________________________________________

     THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
     OF ILLINOIS,                           ) of the 12th Judicial Circuit
                                            ) Will County, Illinois
           Plaintiff-Appellant              )
                                            ) Appeal No. 3-12-0050
           v.                               ) Circuit No. 12-CM-1104
                                            )
     ANGELA DISERA,                         ) Honorable
                                            ) Robert P. Livas,
           Defendant-Appellee.              ) Judge, Presiding.
     ______________________________________________________________________________

           JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
           Justice Wright concurred in the judgment and opinion.
           Justice O'Brien dissented.
     _____________________________________________________________________________

                                               OPINION

¶1          Defendants Sandro Espinoza and Angela Disera were charged in separate cases with

        domestic battery and endangering the life and health of a child, respectively. The charging
     instruments in each case identified the victim only as "a minor." Espinoza was granted a

     motion to amend the charging instrument, but the State refused to amend the indictment.

     Disera was provided a bill of particulars under seal, which named the victim, but the State

     would not identify the victim by his or her initials in the complaint. In both cases, the trial

     court dismissed the complaints based on their insufficiency. The State appealed.

¶2                                      FACTS


¶3       Defendant Sandro Espinoza was charged by information with domestic battery. 720

     ILCS 5/12-3.2(a)(2) (West 2012). The information stated, "said defendant, knowingly,

     without legal justification made physical contact of an insulting or provoking nature with a

     minor, a family or household member, in that said defendant struck a minor about the face."

     At a bond hearing, the State alleged that the victim, identified as Espinoza's son, sustained a

     bloody nose. The State sought a no contact order, which the trial court entered. The no

     contact order named the victim as "D.E."


¶4       At a subsequent plea hearing, despite Espinoza's willingness to enter a guilty plea,

     defense counsel raised concerns about the sufficiency of the information, which identified the

     victim only as "a minor." Defense counsel orally moved to amend the complaint, which the

     trial court denied as an oral motion. However, the trial court also rejected Espinoza's plea,

     finding it could not accept a plea based on an insufficient complaint. At the same hearing,

     Espinoza sought a bond reduction and the State set forth a factual basis, which included

     naming the victim by his initials, D.E.

¶5       Espinoza thereafter filed a written motion to amend the charging instrument pursuant to

     section 111-5 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-5 (West

     2012)), asking the victim to be identified in the information by his initials. The State


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     responded to the motion to amend, arguing that the information complied with the

     requirements in section 111-3 of the Code (725 ILCS 5/111-3 (West 2012)) and was not

     deficient. It further argued that Espinoza was not prejudiced by the charging instrument, and

     that, if he were prejudiced, he could request a bill of particulars. The trial court granted

     Espinoza's motion to amend the information. The State moved for reconsideration, which the

     trial court heard and denied. Nevertheless, the State refused to amend the charging

     instrument. The State asked the court to dismiss the case as a sanction for the State's refusal

     to comply with the order to amend so that the State could appeal the trial court's ruling. The

     trial court dismissed the case. The State filed a certificate of substantial impairment and

     appealed.

¶6       Defendant Angela Disera was charged with endangering the life or health of a child. 720

     ILCS 5/12-21.6 (West 2012). The information stated, "said defendant willfully caused or

     permitted the life or health of a minor, a child under the age of 18 years, to be endangered, in

     that said defendant left the minor child alone at 1350 Sterling, Joliet, Will County, Illinois,

     without adult supervision." Disera moved for a bill of particulars. 725 ILCS 5/114-2 (West

     2012). She argued that the criminal complaint did not name the minor, and because the

     police reports named five different minors (three of whom were Disera's children), she was

     unclear about the identity of the "minor" referenced in the information. The State filed a bill

     of particulars under seal which stated the full name of the minor. However, the State refused

     to amend the complaint by adding the alleged minor victim's initials. Disera filed a motion to

     dismiss, which the trial court granted based on the insufficiency of the complaint. The State

     filed a certificate of substantial impairment and appealed. People v. Espinoza, No. 3-12-

     0766, and People v. Disera, No. 3-12-0050, were consolidated on appeal.

¶7                                     ANALYSIS


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¶8         The issue on appeal is whether the trial court erred when it dismissed both criminal

       complaints based on the insufficiency of the charging instruments. The State argues that

       both complaints included the essential elements of the offenses charged and that the trial

       court erred in dismissing them. We disagree.

¶9        A defendant has a fundamental right, as set forth in section 111–3 of the Code, to be

       informed of the nature and cause of criminal accusations made against him. People v.

       Rowell, 229 Ill. 2d 82, 92-93 (2008); People v. Nash, 173 Ill. 2d 423, 428–29 (1996). "If an

       indictment or information is challenged before trial in a pretrial motion, the indictment or

       information must strictly comply with the pleading requirements of section 111–3." Rowell,

       229 Ill. 2d at 93; see also Nash, 173 Ill .2d at 429; People v. DiLorenzo, 169 Ill. 2d 318, 321–

       22 (1996). "If the indictment or information does not strictly comply with the pleading

       requirements of section 111–3, the proper remedy is dismissal." Rowell, 229 Ill. 2d at 93.

       Accordingly, "[w]hen the sufficiency of a charging instrument is challenged in a pretrial

       motion, the inquiry upon review is whether the instrument strictly complies with section

       111–3." People v. Swartwout, 311 Ill. App. 3d 250, 256 (2000). The sufficiency of a

       charging instrument is a question of law this court reviews de novo. Id.

¶ 10       An indictment or information must "set[] forth the nature and elements of the offense

       charged." 725 ILCS 5/111-3 (West 2012). Where an indictment or information charges an

       offense against persons or property, as here, "the name of the person or property injured, if

       known, must be stated [in the charging instrument], and the allegation must be proved as

       alleged." People v. Jones, 53 Ill. 2d 460, 463 (1973) (quoting People v. Walker, 7 Ill. 2d 158,

       161 (1955)). In other words, where the impact of the crime is "focused more directly upon

       an individual victim than upon society generally," the identity of the individual victim "is an

       essential allegation of an indictment charging that offense" (Jones, 53 Ill. 2d at 463)), and the


                                                   -4-
       failure to identify the victim in the charging instrument renders it deficient (see, e.g., People

       v. Luttrell, 134 Ill. App. 3d 328, 331-32 (1985) (indictment which purported to charge

       aggravated battery against police officers was insufficient because it failed to identify the

       individual police officers who were the alleged victims); Jones, 53 Ill. 2d at 463-64

       (indictment's failure to name victim of alleged armed robbery was a formal defect)).

¶ 11       Although the charging instruments at issue in this case purported to charge crimes

       committed against individual persons (i.e., domestic battery and endangering the life and

       health of a minor), neither document contained any information suggestive of the victims'

       identities. This defect was not cured by the State. When the trial court ordered the State to

       add the alleged victim's initials to the charging instrument in Espinoza's case, the State

       refused and asked the trial court to dismiss the charge as a sanction. The State also declined

       to add the victim's initials to the charging instrument in Disera's case. Under these unusual

       circumstances, the trial court acted properly in dismissing both criminal complaints.

¶ 12       The State argues that the trial court erred because the defendants cannot show that they

       were prejudiced by the charging instruments' failure to identify the alleged victims. We

       disagree. Contrary to the State's suggestion, neither defendant was required to demonstrate

       prejudice at this stage of the proceedings. "When an indictment or information is attacked

       for the first time posttrial," a defendant must show that "he was prejudiced in the preparation

       of his defense" in order to obtain reversal of his conviction based upon an error in the

       charging instrument. (Emphasis added.) Rowell, 229 Ill. 2d at 93. However, as noted above,

       "[a] pretrial challenge to the sufficiency of a charging document necessitates strict

       compliance with the pleading requirement of section 111-3 of the Code." (Emphasis added.)

       Id.; see also People v. Thingvold, 145 Ill. 2d 441, 448 (1991). Here, each defendant

       challenged the sufficiency of the charging instrument before trial. Accordingly, the

                                                    -5-
       defendants were entitled to demand strict compliance with the pleading requirements of

       section 111-3 of the Code without having to show prejudice. Rowell, 229 Ill. 2d at 93.

       Because the charging instruments in this case alleged crimes against individual victims, the

       identities of those victims were essential allegations that had to be included in the charging

       instruments. Jones, 53 Ill. 2d at 463; Luttrell, 134 Ill. App. 3d at 331-32. The State's refusal

       to include these essential allegations in the charging instruments justified the trial court's

       dismissal of the charges. See Rowell, 229 Ill. 2d at 93.

¶ 13       The State correctly notes that, in Jones, our supreme court held that the failure to identify

       the victim in a charging instrument is a "formal defect" that may be corrected by amendment

       prior to trial. Jones 53 Ill. 2d at 465. However, in this case, the State never moved to correct

       the defective charging instruments. To the contrary, when the trial court ordered the State to

       amend Espinoza's charging instrument by adding the victims' initials, the State refused. The

       State could have avoided dismissal of the charges in this case by complying with the trial

       court's order and by adding the victims' names to both charging instruments. The trial court

       was not required to reward the State's intransigence by allowing it to proceed to trial on a

       defective charge.

¶ 14       The State also argues that "any claimed deficiencies" in the charging instruments "could

       be sought through a bill of particulars or found in *** discovery." The State maintains that

       the traditional requirement that a victim's name be included in an indictment is "outdated"

       because the role that a charging instrument plays in notifying the defendant of the charges

       against him and in preventing a subsequent prosecution on the same charge has decreased

       due to the availability of these devices. (Citing People v. Gilmore, 63 Ill. 2d 23, 30 (1976)

       ("a prior prosecution on the same facts may now be proved by resort to the record"); Jones,

       53 Ill. 2d at 464 (noting that the liberalization of criminal pleading reflects "a lessening in

                                                    -6-
importance of the indictment's secondary functions," and that "[t]he indictment as a means of

informing defendants of particulars concerning the case is now far outshadowed by the array

of discovery procedures available to the defense"). However, these considerations do not

support the State's argument in this case. When challenging the sufficiency of a charging

instrument before trial, a defendant is entitled to demand strict compliance with the pleading

requirements of section 111-3 of the Code regardless of whether the missing information at

issue is available through other means. 1 Section 111-3 requires a charging instrument to


   1
       For this reason, Gilmore, People v. Mahoney, 18 Ill. App. 3d 518 (1974), and other

   cases cited by the State are inapposite. In each of those cases, the defendant challenged

   the sufficiency of the indictment for the first time on appeal. To obtain a reversal of a

   conviction under those circumstances, a defendant must show that the lack of specificity

   in the charging instrument rendered him unable to "prepare his defense" or to "plead[] a

   resulting conviction as a bar to future prosecution arising out of the same conduct."

   Gilmore, 63 Ill. 2d at 29. As noted, however, a defendant need not make such a showing

   if, as here, he or she challenges the sufficiency of a charging instrument before trial.

   Rowell, 229 Ill. 2d at 93.     For the same reason, the cases upon which the dissent

   principally relies (People v. Raby, 40 Ill. 2d 392 (1968) and People v. De Kosta, 132 Ill.

   App. 2d 691 (1971)) do not support the State's argument in this case. In each of those

   cases, there is no suggestion that the defendant challenged the sufficiency of the criminal

   complaint prior to the appeal. Moreover, each of those cases was decided prior to Jones.

   Further, De Kosta relied upon People v. Crouch, 29 Ill. 2d 485-86 (1963), which was

   distinguished by Jones on the ground that the crime charged in Crouch (fraud) did not

   involve danger to a particular person as part of the "essence" of the offense. Jones, 53 Ill.


                                           -7-
       "set[] forth the nature and elements of the offense charged." 725 ILCS 5/111-3 (West 2012).

       As noted, the charging instruments in this case did not satisfy that requirement.

¶ 15       Our supreme court has never held or implied that the charging instrument no longer

       plays an important role in informing a defendant of the nature of the charges against him.

       Rather, it has merely noted that the charging instrument is no longer the exclusive means

       through which a defendant may obtain information about the charge. Gilmore, 63 Ill. 2d at

       30; Jones, 53 Ill. 2d at 464. Accordingly, the Jones court held that a charging instrument's

       failure to identify the alleged victim was a formal defect that was subject to correction by

       amendment rather than a substantial defect barring amendment and requiring automatic

       dismissal. Jones, 53 Ill. 2d at 46. In so ruling, however, our supreme court confirmed that a

       charging instrument which alleges the commission of a crime against a particular person but

       fails to identify the victim is defective and in need of correction. Id. As noted, the State

       refused to correct the defective indictments in this case.

¶ 16       Finally, the State argues that its refusal to include the minor victims' initials in the

       charging instruments was justified on public policy grounds. In support of this argument, the

       State cites statutes in other states which ban the disclosure of the identities of child victims of

       certain crimes in any public document, including charging instruments. However, Illinois

       has not enacted a similar statute, and it is the province of the legislature, not this court or the

       prosecutor, to prescribe such a policy. Moreover, we note that the New Jersey statute cited

       by the State allows the inclusion of a child victim's initials in a charging instrument. See N.J.

       Stat. Ann. § 2A: 82-46 (2004). This procedure (which is all that the defendants initially


           2d at 463. The crimes charged in this case, like the armed robbery charged in Jones,

           involved danger and physical harm to particular victims.


                                                    -8-
          requested in this case) would have satisfied the requirements of section 111-3 of the Code

          while adequately protecting the alleged victims' privacy.

¶ 17                                         CONCLUSION

¶ 18               For the foregoing reasons, we affirm the judgments of the circuit court of Will

              County.

¶ 19           Affirmed.

¶ 20   JUSTICE O'BRIEN, dissenting:

¶ 21          I respectfully dissent. In People v. Walker, the Illinois Supreme Court set forth the

       rationale and the requirements necessary to comply with what is now section 111-3 of the Code

       of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3 (West 2012)). People v. Walker, 7 Ill.

       2d 158 (1955). The majority relies on a portion of the Walker opinion, namely, "the name of the

       person or property injured, if known, must be stated [in the charging instrument], and the

       allegation must be proved as alleged," but ignores the remainder of the Walker court's

       pronouncement that, "[p]roof of the Christian name is unnecessary[,] however, where the facts in

       evidence leave no doubt as to the identity of the person. Walker, 7 Ill. 2d at 161 (citing People v.

       Smith, 341 Ill. 649, 652 (1930)).

¶ 22          The Walker court explained the purpose of the pleading requirements is to protect the

       accused against double jeopardy. Walker, 7 Ill. 2d at 161-62. In 1973, 18 years after the Walker

       decision, the Illinois Supreme Court in People v. Jones, 53 Ill. 2d 460, 464 (1973), explained:

                      "The indictment as a means of informing defendants of particulars

                      concerning the case is now far overshadowed by the array of

                      discovery procedures available to the defense. Similarly, the time

                      when an indictment defined the limits of jeopardy has passed and a

                      prior prosecution on the same facts may be proved by resort to the

                                                      -9-
                      record."

       The Jones court thus recognized a charging instrument is not necessarily defective for failing to

       identify the victim by name. In fact, the Jones case is distinguishable from the instant cases

       because in Jones, the victim was misidentified, not unidentified by name as in the instant

       indictments.

¶ 23          The facts in the instant cases are more analogous to People v. De Kosta, 132 Ill. App. 2d

       691, 695 (1971), where the reviewing court found that a complaint charging the defendant with

       reckless conduct that failed to name a specific victim was not insufficient. De Kosta relied on

       People v. Raby, 40 Ill. 2d 392, 399 (1968), in which the complaint there identified the victims of

       the defendant's disorderly conduct as " 'other persons' " and " 'another.' " De Kosta, 132 Ill. App.

       2d at 694. The Raby court determined the complaint was sufficient because it adequately

       informed the defendant of the nature of the offense. De Kosta, 132 Ill. App. 2d at 694-695

       (citing Raby, 40 Ill. 2d at 399-400). The De Kosta court also looked at People v. Crouch, 29 Ill.

       2d 485, 485-86 (1963), where the indictment for forgery did not specify a victim. The court in

       Crouch examined the gist of the offense and determined that the identity of the defrauded party

       does not need to be specified. De Kosta, 132 Ill. App. 2d at 695 (citing Crouch, 29 Ill. 2d at

       488). Relying on Raby and Crouch, the reviewing court concluded that the victim's identity was

       not an element of the offense. De Kosta, 132 Ill. App. 2d at 695.

¶ 24          The changes in criminal discovery rules from the middle of the last century to today have

       eliminated much of the reliance on the indictment as the safeguard against a defendant being

       tried twice for the same offense. Additionally, the changes in criminal discovery rules allow the

       defendant access to much more information to aid in the preparation of a defense. The effect of

       those changes being that, as contemplated by Jones and Walker, the omission of the names of the

       victims does not render the charging instruments here defective.

                                                      - 10 -
¶ 25   For those reasons, I would reverse the decision of the trial court.




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