                                 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


                                             -2-
     5/111-5 (West 2012)), asking the victim to be identified in the information by his initials.

     The State 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 2010). 1 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



     1
         The criminal complaint charged Disera with violating "Chapter 720, Section 5/12-21.6,

     of the Illinois Compiled Statutes 2012." However, the Illinois Compiled Statutes 2012

     did not include a section 5/12-21.6 because the offense of endangering the life or health

     of a child was amended and renumbered as 720 ILCS 5/12C-5 (West 2014). Although

     these changes did not become effective until January 1, 2013, the 2012 Illinois Compiled

     Statues already reflected the changes. Thus, for the sake of accuracy, we have cited the

     2010 statute above.


                                              -3-
     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

¶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


                                             -4-
       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 "[s]et[] 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 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.

                                                -5-
       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. 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 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

                                                -6-
       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. In support of this

       argument, the State cites People v. Gilmore, 63 Ill. 2d 23, 30 (1976), which observed that

       "a prior prosecution on the same facts may now be proved by resort to the record"

       (internal quotation marks omitted)), and Jones, 53 Ill. 2d at 464, which noted that the

       liberalization of criminal pleading reflects "a lessening in 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 overshadowed 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




                                               -7-
at issue is available through other means. 2 Section 111-3 requires a charging instrument

to "[s]et[] 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.




2
    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.

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-
¶ 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 465. 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 (West 2004). This

       procedure (which is all that the defendants initially 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

                                                 -9-
¶ 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 record."

                                              - 10 -
       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 694-95. 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

                                              - 11 -
       instruments here defective.

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




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